245 Mass. 114 | Mass. | 1923
This is an action of tort. The plaintiff alleges that he was entitled to the rights of a passenger on the transportation system known as the New York, New
The defendant’s exceptions to the merits of the case were duly filed and allowed. Those exceptions came on to be heard before us on October 17 and 18, 1922. At that time the defendant argued that Walker D. Hines, the duly appointed Director General of Railroads when the action was brought, 40 U. S. Sts. at Large, 1922, and named as a defendant in the writ, was acting in that capacity at the termination of federal control on February 28, 1920; that he was designated as agent under the Transportation Act of February 28, 1920, c. 91, 41 U.S. Sts. at Large, 461, § 206 (a) in effect March 1, 1920, and continued to act until May 18, 1920, at which time John Barton Payne was appointed Director General of Railroads and designated as agent under the Transportation Act by proclamations of the President, 41 U. S. Sts. at Large, 1793, 1794; that on March 26, 1921, James C. Davis was designated as agent to succeed John Barton Payne, see Sts. of U. S. passed at First Session of 67th Congress, Proclamations, page 5, and that by Act of Congress of February 8, 1899, c. 121, 30 U. S. Sts. at Large, 822, the motion to substitute James C. Davis as
The allowance of the amendment nunc pro tunc substituting the new defendant was valid under our practice, which is applicable to actions of this nature against the Director General of Railroads. Perkins v. Perkins, 225 Mass. 392. G. L. c. 235, § 4. Genga v. Director General of Railroads, 243 Mass. 101. Aetna Mills v. Director General of Railroads, 242 Mass. 255.
Whatever doubt might have existed as to the propriety of this procedure against the Director General of Railroads, and as to our jurisdiction to consider and decide this case, has been removed by an Act of Congress approved on March 3, 1923, 42 U. S. Sts. at Large, 1443, amending § 206 of the Transportation Act of 1920. That act by its express terms is applicable to pending actions. Hanscom v. Malden & Melrose Gas Light Co. 220 Mass. 1, 8. The effect of that act is by plain and indubitable words to render inapplicable to this action the limitation established by Act of Congress of February 8, 1899, 30 U. S. Sts. at Large, 822, and to permit the maintenance of this action in the present form at this time. Counsel for its defendant raises no question as to the applicability of that act to the substitution which has been made in this action.
The plaintiff’s case on its merits rests wholly on the contention that there was a failure of duty on the part of the defendant in not policing and controlling the crowd of people at the Quincy station at the time of his injury.
The evidence in its aspect most favorable to the plaintiff, disregarding those parts which tend to exonerate the defendant, is that the plaintiff was an employee at the Fore River ship building works during the late war; that there was a great increase in the number of persons there employed within a year prior to the date of the plaintiff’s injury, and a consequent increase in the passenger traffic on the railroad between Quincy and Boston; that on Saturdays between noon and seven minutes past three o’clock in the afternoon, for a considerable time before the accident, there were nine trains from Quincy for Boston, seven of which were extras, and four of which were eight car trains exclusively for Quincy service. The plaintiff, having a ticket and intending to take a train for Boston, went to the railroad station in Quincy on the Saturday afternoon in question. A crowd of a thousand people was there, as estimated by him. He then
This description of the conduct of the crowd at the station on previous occasions conveys no idea of turbulence, roughness, disorder or disregard for the safety of others. The crowd itself was no evidence of dangerous confusion. Like or greater numbers of people gather frequently at places of amusement and other meetings and resorts of the public. The statement that the crowd rushed for the train does not import violence. Foley v. Boston & Maine Railroad, 193 Mass. 332. The crowd was composed chiefly of workmen leaving their labor for the week end half holiday. The place from which they came and the occasion which called them together were not calculated to incite disorder, violence or disregard of the rights of others. There was nothing to indicate the likelihood of impetuosity, lawlessness,
We are of opinion that the facts here disclosed do not support a finding that there was any breach of duty owed by the defendant to the plaintiff. In reaching that conclusion it is assumed without so deciding that the plaintiff was entitled to the rights of a passenger. The case at bar falls within the class of cases illustrated by Anshen v. Boston Elevated Railway, 205 Mass. 32; Jackson v. Boston Elevated Railway, 217 Mass. 515; Gascievicz v. Boston Elevated Railway, 222 Mass. 266; MacGilvray v. Boston Elevated Railway, 229 Mass. 65; Knowles v. Boston Elevated Railway, 233 Mass. 347; Ritchie v. Boston Elevated Railway, 238 Mass. 473; Savickas v. Boston Elevated Railway, 239 Mass. 226. It is distinguishable from cases like Kuhlen v. Boston & Northern Street Railway, 193 Mass. 341; Glennen v. Boston Elevated Railway, 207 Mass. 497; Kelley v. Boston Elevated Railway, 210 Mass. 454; Morse v. Newton Street Railway, 213 Mass. 595; Collins v. Boston Elevated Railway, 217 Mass. 420; Danovitz v. Blue Hill Street Railway, 218 Mass. 42; Franz v. Holyoke Street Railway, 239 Mass. 565. The principles of law governing the rights of the parties are familiar and have been frequently stated. They are amplified in the cases cited and need not be repeated.
It becomes unnecessary to consider the other defences raised.
The exceptions set forth in the second bill of exceptions are overruled. A verdict ought to have been directed for the defendant on the main case as set forth in the first bill of exceptions in accordance with his request. The case seems to have been fully and fairly tried. Bothwell v. Boston Elevated Railway, 215 Mass. 467, 471. Therefore, these exceptions are sustained and judgment is ordered for the defendant under G. L. c. 231, § 122.
So ordered.