Brassard v. Boston & Maine Railroad
Decision Date | 16 January 1957 |
Docket Number | No. 5164.,5164. |
Parties | J. Maurice BRASSARD, Plaintiff, Appellant, v. BOSTON & MAINE RAILROAD, Defendant, Appellee. |
Court | U.S. Court of Appeals — First Circuit |
Jack B. Middleton, Manchester, N. H., Walter H. Gentsch, East Jaffrey, N. H., Stanley M. Brown, and McLane, Carleton, Graf, Greene & Brown, Manchester, N. H., on the brief, for appellant.
William L. Phinney, Manchester, N. H., Sheehan, Phinney, Bass, Green & Bergevin, Manchester, N. H., on the brief, for appellee.
Before WOODBURY and HARTIGAN, Circuit Judges, and WYZANSKI, District Judge.
This case is here on plaintiff's appeal from the District Judge's order dismissing plaintiff's amended complaint. Although the order is not accompanied by an opinion, the record makes it clear that the District Judge's dismissal was based on the theory that the complaint asserted a single cause of action under the Federal Employers' Liability Act which accrued in 1951 and was not brought within the period required by U.S.C. Title 45 § 56 which provides "no action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued."
Plaintiff filed his original complaint on February 21, 1956. On April 24, 1956 he filed a motion to amend the complaint; and this was allowed on July 17, 1956. Thus the amended complaint may reach any cause of action which accrued after April 24, 1953 (and indeed may reach any cause of action which accrued after February 21, 1953 if it was asserted in the original complaint). The new pleading is in seven paragraphs. In the first paragraph it is alleged that the defendant is a railroad corporation engaged in interstate commerce and that the action is brought by virtue of the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51, et seq., and involves more than $3,000. The second paragraph states that the plaintiff for a long time prior to and in October 1953 was an employee of the defendant. The third paragraph describes the plaintiff's duties in unloading railroad ties. The fourth paragraph makes the following assertions with respect to the defendant's negligence:
The fifth paragraph refers to defendant's alleged negligence toward plaintiff on September 21, 1951 which caused him injury then. It also refers to "a similar injury" on January 12, 1953; but it is not clear whether it is claimed that this injury was caused by a separate breach of duty by defendant.
Paragraphs 5a and 5b read as follows:
The sixth and seventh paragraphs recite the alleged damages in more detail.
While the amended complaint is not a model of clarity or brevity, we are of the opinion that it does allege, in addition to other matters, that in October 1953 (that is, within the three year statutory period) defendant put plaintiff to work lifting heavy objects without giving plaintiff adequate tools or sufficient and competent fellow workmen to assist him, and without issuing to him reasonably sufficient instructions relating to the conduct of his work.
Under this construction of the amended complaint, the October 1953 events are separate from the events of September 21, 1951 and January 12, 1953. To use the words of Judge L. Hand in Pieczonka v. Pullman Co., 2 Cir., 89 F.2d 353, 357, defendant's alleged wrong is not "single and continuous" but "plural and discrete".
The familiar rule is that if defendant commits a single breach of duty, plaintiff's cause of action in tort...
To continue reading
Request your trial-
Lancaster v. Norfolk and Western Ry. Co.
...the extent of the damage was not immediately manifest did not postpone the accrual of the cause of action." Brassard v. Boston & Maine R.R., 240 F.2d 138, 141 (1st Cir.1957). Yet the same cases make clear, following Urie v. Thompson, 337 U.S. 163, 169-71, 69 S.Ct. 1018, 1024-25, 93 L.Ed. 12......
-
Tessier v. United States
...on and after February 22, 1954, a date set forth in the original complaint", D.C., 156 F.Supp. 32, at page 34, cf. Brassard v. Boston & Maine R. R., 1 Cir., 1957, 240 F.2d 138 and allowed motions to strike which pared the amended complaint to reflect this ruling. It was on this theory that ......
-
Fletcher v. Union Pac. R. Co.
...upon the occurrence of the injury, regardless of whether the full extent of the disability is known at that time. Brassard v. Boston & Main R. R., 240 F.2d 138 (1st Cir. 1957); Deer v. New York Central Ry., 202 F.2d 625 (7th Cir. 1953); Felix v. Burlington Northern, Inc., 355 F.Supp. 1107 (......
-
Goodwin v. Bayer Corp.
...does not postpone the commencement of the statute of limitations according to a substantial majority of courts. Brassard v. Boston & Me. R.R., 240 F.2d 138 (1st Cir.1957); Ciccarone v. United States, 486 F.2d 253 (3d Cir.1973); Beech v. United States, 345 F.2d 872 (5th Cir.1965); Steele v. ......