294 Mass. 152 | Mass. | 1936
This is an action of tort brought by the plaintiff to recover for the conscious suffering and death of her late husband, Thomas Lynch (hereinafter referred to as Lynch), while he was in the employ of the defendant. The action was brought under the Federal employers’ liability act (35 U. S. Sts. at Large, 65, c. 149, 36 U. S. Sts. at Large, 291, c. 143; U. S. C. Title 45, §§ 51-59) against the defendant, and was tried on a substitute declaration. The defendant’s exceptions relate solely to the allowance of the plaintiff’s substitute declaration.
The jury returned a verdict for the plaintiff in the sum of $5,000 on the count for death, and $500 on the count for conscious suffering. The verdict was recorded by the judge subject to leave reserved under G. L. (Ter. Ed.) c. 231, § 120. Thereafter the defendant filed a motion for the entry of a verdict in its favor, which was argued, and a verdict for the defendant was entered accordingly. To the allowance of the motion and to the entry of the verdict, the plaintiff excepted. It was agreed by counsel at the trial that the plaintiff was the duly qualified adminis-tratrix of the estate of the deceased, and that the deceased, at the time of the derailment which resulted in his death, was employed by the defendant in work constituting interstate commerce.
There was evidence as follows: On the day of the accident Lynch was about fifty-three and one half years of age. He was a strong, healthy man, and his wife and four of his children were dependent upon him for support. He had been employed by the defendant for thirty-one years preceding his death, and had been its section foreman for the past twenty-eight years. He was foreman of the section from North Webster in this Commonwealth to Grosvenor-
O’Brien described the car as follows: “We had sheet metal come out in front, there was a bar which ran lengthwise which we sometimes used to hang onto. Up in front on both sides where the tools went was a piece of sheet metal stuck up there. It sort of worked up higher than the boards at the front of the tool boxes as shown in the picture, on the same principle but it was- higher up. . . . The car had a lever something like that shown in Exhibit A for Identification and there was a foot brake and a throttle. It did not have a seat like that in the picture. It had an automobile seat with a back. to it. . . . The tool boxes on our car had braces on the side. It had flanged wheels.” This witness further testified that in his opinion the car weighed eight hundred or nine hundred pounds; that it could be lifted on a turntable and run on and off the track whenever they stopped for work; that the driver’s seat was on the left side where the lever was for operating the car; that in the car that morning there were rail tongs and other articles including four shovels and two picks; that on the way they picked up two iron lining bars about five feet long and used for straightening rails, lining the track, and putting in ties; that they had with them a turntable and a telephone; that the tools were such as they usually carried when they went to change a rail; that when they left the station at North Webster Lynch was operating the car, facing the front, Smitty was sitting on
Stanley Kalwarczyk, called by the plaintiff, testified that at the time of the accident he had been working for the defendant about twenty years and was so working at the time of the accident; that he and the other members of Lynch’s section gang put the tools on the side of the car in the usual place; that after leaving Wilkinsonville “we went about two and one half miles until we got that shake” (the witness then shook his hands sideways and then up and down); that after the car left the rails it went off the bank into the water; that he (the witness) fell on top of Lynch; that no tools fell out of the car before it started to shake; that he saw nothing on the track at any time before the accident. On cross-examination this witness testified that the car was loaded at Webster, and two lining bars were picked up at Wilkinsonville and were put on the sides of the car; that “A lining bar is a rail bar about five or six feet long and about three inches around.” This witness further testified that the motor car worked all right up to the time of the accident.
Harold W. Chandler, called by the defendant, testified in part that on the day of the accident he was a member of Lynch’s section gang; that the motor car involved in the accident was received in April, 1930; that it was started with a crank and had a friction clutch; that it was used on the section right along; that it worked perfectly so far as he could see; that he never heard Lynch complain about it; that Lynch wanted a seat for it, and a seat came but the witness did not know who put it on; that Lynch supervised the care of this car; that Lynch had him oil it and see that the spark plugs were clean, and he did the cranking, and all that was done was under the supervision of Lynch, who had full control of the car, This witness further testi-
An assistant superintendent called by the defendant testified that more than an hour after the accident he saw the motor car and the tools, and then walked up the track following some marks; that the first mark he saw
A witness called by the defendant testified that at the time of the accident he was a track supervisor in the employ of the defendant; that Lynch reported to him; that he arrived at the place of the accident shortly after eight o’clock on the morning it occurred and arranged for removal of the men involved in the accident; that he made notes of the condition of the track; that three days later he took the motor car out of the river; that he found some marks on the ties back of the point of derailment; that he went back half or three quarters of a mile; that at a point ninety-six feet behind where Pecherina’s body was found there was an indentation on. the north side of a tie, probably one half inch below- the top of the tie, a blunt indentation or puncture which had splintered the edge of the tie a trifle, approximately one foot inside the .right-hand rail in the direction the car was travelling; that from there on there were no more puncture marks. This witness further testified that “Considering the tie that had the puncture mark in it as the first, the next mark was on the twelfth tie; that was nineteen and three-tenths feet south of the first mark. The next mark was on the sixteenth tie, twenty-five and six-tenths feet south of the first mark. Thereafter every tie was marked up to and including the thirty-fourth tie. There was also what I determined to be flange marks of the wheels of the car on the ties. That was on the twenty-ninth tie south of the first mark, forty-seven and seven-tenths feet from the first flange marks, the wheels indicating to me the car had left the rails at that point. Flange
One Lane was called as a witness by the defendant. He testified that he was a sales and service engineer for Fairbanks, Morse & Co.; that he was familiar with motor cars numbered 44B used on sections; that they were first manufactured in 1927 and were being manufactured by the company in 1930; that the defendant bought several; that he put each one in service, instructing the operator; that he instructed the decedent Lynch in April, 1930; that when the motor car was left with the defendant it was operating all right; that the same type of cars, 44B, “were used all over railroads in the spring of 1930.”
One Bushnell, called by the defendant, testified that he was a gas engine mechanic employed by the defendant; that he helped to install the motor car which was operated by Lynch at the time of the accident; that he showed him how to operate it, and how to lubricate and handle it properly; that he had known Lynch for six or seven years and Lynch had been operating a motor car before this time; that he made an inspection of the motor car involved in the accident in May, 1930 ■— about two weeks after it had been installed; that it was operating properly and Lynch did not make any complaints about it; that he next saw the motor car on July 15 or 16, 1930, after the accident — it was loaded on a flat car; that after it was taken from the river he examined it and found that certain parts were
Certain rules of the defendant were admitted in evidence including Rule 735 which provides in part that a motor car must be operated by the foreman or man in charge of the gang; Rule 736, “Cars must not be run faster than 20 miles per hour and then only where view is unobstructed and the way is known to be clear”; and Rule 744, “Track jacks or other tools liable to fall off must not be carried on the forward end of cars . . . .”
After a verdict was returned for the plaintiff, subject to leave reserved under G. L. (Ter. Ed.) c. 231, § 120, the defendant moved that a verdict be entered in its favor upon the following grounds: “(1) Because there is not sufficient evidence to justify a finding of negligence on the part of the defendant, its servants or agents; (2) Because there is not sufficient evidence to warrant a finding that there was any defect in the equipment of the defendant or that it was insufficient; (3) Because under the facts in this case the plaintiff’s intestate assumed the risk of injury; (4) Because under the company’s rules, especially Rule 744, it was the duty of the section foreman, the plaintiff’s intestate, to see that materials carried on hand or motor cars' were properly secured in a manner to prevent any possibility of their falling from the car; (5) Because under the facts in this case the doctrine of res ipso loquitur does not apply; (6) Because the action contained in each count of the substituted declaration was not commenced within two years from the day the cause of action accrued as required by the terms of the Federal employers liability act, so called.” The motion was allowed, and a verdict for the defendant was entered. To the allowance of the motion the plaintiff excepted.
The motor car which was operated by Lynch at the time of his death was purchased in April, 1930, and had been operated less than three months before the accident; it had been purchased of a reputable manufacturer, and approximately two thousand cars of a similar type were in
The contention of the plaintiff that the doctrine of res ipso loquitur applies cannot be sustained. Negligence of the defendant cannot be inferred from the circumstances of the occurrence that caused the injury. It was said in Wilson v. Colonial Air Transport, Inc. 278 Mass. 420, at page 425: “The principle of res ipso loquitur only applies where the direct cause of the accident and so much of the surrounding circumstances as were essential to its occurrence were within the sole control of the defendants or of their servants. Reardon v. Boston Elevated Railway, 247 Mass. 124. . . . the presumption raised in favor of the plaintiff by the application of the doctrine, res ipso loquitur, is one of evidence and not of substance, and . . . the burden of proof remains during the trial upon the plaintiff.” In reference to this doctrine it was said in Shipp v. Boston & Maine Railroad, 283 Mass. 266, at pages 272-273: "But whatever may be the applicability of this doctrine under some conditions . . . this is not a case where negligence of the defendant can be inferred from ‘the circumstances of the occurrence that has caused the injury.’ See Sweeney v.
There was evidence that about two months before the accident an angle bar fell off the car. In view of the evidence of marks on the ties above the place where the car was derailed, it could have been found that one end of the bent bar which was found at the place of the accident and is shown on the left side of the plaintiff’s Exhibit 2 had dropped down from the car and caught on the ties and caused the derailment. Unless the car left the track for this reason, or because of excessive speed, no cause for the derailment appears. If it was due to either cause the accident may well have been due solely to negligence of Lynch himself. The fact that there was an accident creates no presumption of negligence on the part of the employer in an action brought by an employee. It was said in Patton v. Texas & Pacific Railway, 179 U. S. 658, at page 663: “. . . in the case of a passenger the fact of an accident carries with it a presumption of negligence on the part of the carrier, a presumption which in the absence of some explanation or proof to the contrary is sufficient to sustain a verdict against him, for there is prima facie a breach of his contract to carry safely ... a different rule obtains as to an employe. The fact of accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employé to establish that the employer has been guilty of negligence.” See also New York Central Railroad v. Ambrose, 280 U. S. 486; Shipp v. Boston & Maine Railroad, 283 Mass. 266. The doctrine of res ipso loquitur is not applicable to the casé at bar because of the fact that the car and the tools upon it were under the exclusive control and management of Lynch
Plaintiff’s exceptions overruled.
Defendant’s exceptions dismissed.