319 Mass. 413 | Mass. | 1946
The plaintiff has a verdict in this action under the Federal employers’ liability act, U. S. C. (1940 ed.) Title 45, §§ 51-60, for the death of her husband, Mark J. Murphy, alleged to have occurred on or about December 1, 1942. The only exception of the defendant on which the case is here is to the refusal of the judge to direct a verdict for the defendant.
It is agreed or substantially admitted that the defendant was a common carrier by railroad engaged in interstate commerce; that the deceased was an employee of the defendant; and that his employment was in interstate commerce. The question to be decided is whether there was any evidence for the jury that while he was so employed his death resulted “in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or
There was evidence tending to show these facts: The deceased was a locomotive fireman who “held over twenty years’ seniority.” He was “a very devoted and good husband.” On December 1,1942, his work was on a “passenger switcher” which was making and breaking up passenger trains at the North Station in Boston. He had worked many times upon the switcher, doing work of a routine character which was substantially the same each night. He starte°d for work in his automobile at about 1:30 o’clock that afternoon. He appeared normal and healthy. At five or ten minutes past seven in the evening he left his engine to get something to eat and started off along the platform toward the station gates. The engineer had told him that on his return the engine would be on “track A.” The engine generally went to “track A” at about that time for a supper period. “Track A” began between two high loading platforms near that which was called at the trial the southerly side of the station, but which we suspect would be more accurately described as the easterly or northeasterly side. Proceeding away from the station in the direction of the draws over the Charles River, this track merged into another track which ran for a considerable distance along the edge of the river to the most easterly draw, known as “draw 1,” and then over that draw. Between this last mentioned track and the river was a “catwalk” provided for persons walking to and over the draw. The “catwalk” began at a sea wall at the edge of the river near the station and ran out to ‘' draw 1. ” The ' ‘ catwalk ’ ’ was provided with a metal railing along the river, but there was no railing, fence, or guard upon the sea wall at which the “catwalk” began. After the deceased left his engine at a few minutes past seven he was next heard from in a telephone call to his wife at about 7:30. They talked about “the children.” He said he had finished his supper, suggested buying a Christmas present the next day, told his wife to “keep the pot on,” that he would see her at eleven o’clock, and after some joking
There was evidence that when the deceased came back from supper it was his duty to find his engine; and that if his engine had gone from “track A” he should go to the yard master’s office, which was “between tracks 12 and 13 at the head of the depot near the draw,” and find out where his engine was. It appeared that the night of December 1 was the first night of the war “dim out”; .that the flood lights were out in an area which could be found to include the sea wall and the beginning of the “catwalk,” and that there was “no lighting” at a point near the beginning of the “catwalk.” The night was rainy and windy.
No witness testified to seeing the deceased alive after he left the engine to go for something to eat. His automobile was found in the vicinity of the engine house the next morning. On May 13, 1943, his badly decomposed body was discovered floating in the water of the Charles between Warren Avenue bridge and Charlestown bridge some distance below the railroad draws. There was evidence that
The standard by which is measured the amount of evidence necessary to carry a case to the jury under the Federal act is, of course, that established by decisions of the Supreme Court of the United States. Brady v. Southern Railway, 320 U. S. 476, 479. Shipp v. Boston & Maine Railroad, 283 Mass. 266. Recent decisions of that court have, in general, disclosed a tendency toward scrupulous avoidance of any possible encroachment upon the sphere of the jury. Tiller v. Atlantic Coast Line Railroad, 318 U. S. 54, 67-68; S. C. 323 U. S. 574. Bailey v. Central Vermont Railway, 319 U. S. 350, 353-354. Tennant v. Peoria & Pekin Union Railway, 321 U. S. 29, 35. Blair v. Baltimore & Ohio Railroad, 323 U. S. 600, 602. Lavender v. Kuhn, 327 U. S. 645. See Waddell v. Chicago & Eastern Illinois Railroad, 142 Fed. (2d) 309, certiorari denied, sub nomine Chicago & Eastern Illinois Railroad v. Waddell, 323 U. S. 732; Eglsaer v. Scandrett, 151 Fed. (2d) 562. In the Tennant case, 321 U. S. at page 35, the Supreme Court said, “It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable.” Compare our own statement of the governing rule in Smith
We have no serious trouble in finding evidence of the defendant’s negligence toward employees using the “catwalk” in the failure of the defendant to provide a guard of any kind for the retaining wall immediately next the beginning of the “catwalk” at a place where persons approaching, the walk would naturally pass. Cawman v. Pennsylvania-Reading Seashore Lines, 110 Fed. (2d) 832, certiorari denied, sub nomine Pennsylvania-Reading Seashore Lines v. Cawman, 311 U. S. 666. Bimberg v. Northern Pacific Railway, 217 Minn. 187. Southern Railway v. Wilmouth, 154 Va. 582, 590. See Baltimore & Ohio Railroad v. Berry, 286 U. S. 272; Kenney v. Boston & Maine Railroad, 92 N. H. 495. Especially could such negligence be found in leaving this space unguarded on a dark, rainy, windy night, when the usual illumination had been for the first time withdrawn. There is nothing to show that “dim out” regulations required the complete extinguishment of all illumination. Boston & Maine Railroad v. Cabana, 148 Fed. (2d) 150, 153.
We apprehend the question of difficulty in the case to be whether there was any evidence for the jury that the deceased fell into the river at this point, so that negligence in leaving the wall unguarded could be found to have- contributed to cause death. To answer this in the affirmative on the evidence in this case is to concede to the jury a very wide scope for the drawing of a chain of inferences. Nevertheless, we are of opinion that, at least under the rule now laid down by final authority, the necessary inferences could be drawn without entering the field of speculation or conjecture.
In the first place, any likelihood that the deceased committed suicide (an inference never easily drawn, Bohaker v.
. If the jury made the findings which, we think, at least according to the standard of proof laid down by the Supreme Court of the United States, they were warranted in making, it would follow that the death was occasioned while the deceased was employed in interstate commerce (North Carolina Railroad v. Zachary, 232 U. S. 248, 260; Erie Railroad v. Winfield, 244 U. S. 170, 173; Watkins v. New York, New Haven & Hartford Railroad, 290 Mass. 448, 449-450, and cases cited), and that the only other necessary elements of negligence and cause “in whole or in part” were present. See Sargent v. Massachusetts Accident Co. 307 Mass. 246; Bly v. Southern Railway, 183 Va. 162; Krell v. Maryland Drydock Co. 184 Md. 428. The case of Cowdrick v. Pennsylvania Railroad, 132 N. J. L. 131, certiorari denied, 323 U. S. 799, upon which the defendant relies, seems to us distinguishable on the ground that in that case there was no evidence of any defect or of any negligent conduct on the part of the defendant.
Exceptions overruled.