Sasinowski v. Boston & MRR

• Decision Date: 04 January 1935
• Docket Number: No. 2947.,2947.
• Citation: 74 F.2d 628
• Parties: SASINOWSKI v. BOSTON & M. R. R.
• Court: U.S. Court of Appeals — First Circuit

74 F.2d 628 (1935)

SASINOWSKI v. BOSTON & M. R. R.

No. 2947.

Circuit Court of Appeals, First Circuit.

January 4, 1935.

Joseph Cavanagh, of Boston, Mass. (Wardner & Cavanagh, of Boston, Mass., on the brief), for appellant.

Francis P. Garland, of Boston, Mass. (John De Courcy and Hurlburt, Jones & Hall, all of Boston, Mass., on the brief), for appellee.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

WILSON, Circuit Judge.

This is an appeal from a judgment of the District Court of Massachusetts in an action of tort brought by the plaintiff as administratrix to recover damages for the death of her intestate, which occurred when a flat car on which he was riding was derailed while being hauled over the tracks of the defendant's railroad.

Springfield in Massachusetts, and in Bellows Falls, Vt. On July 17 its agent at Cambridge, Mass., entered into an agreement with the defendant for the transportation of the circus equipment above enumerated from Lakeport to Gloucester, Mass.; from Gloucester to Springfield, Mass.; and from Springfield to Bellows Falls, Vt.

The material provisions of the contract are as follows:

"First: The Railroad will furnish the use of its railroad and necessary sidings, the necessary conductors, engineers and other trainmen, and sufficient motive power and will perform the switching and placing of cars for loading and unloading at its stations hereinafter named and transport the show, show material, show animals, apparatus and paraphernalia, and persons in charge thereof, employees and performers, and their personal baggage in cars loaded and unloaded by and at the expense and risk of the Show, upon the dates and to make the runs following, to wit:

                  --------------------------------------------------------------------
                  Leave                 For                       About 8:00 A. M
                  Lakeport, N. H.       Gloucester, Mass.     Sunday, July 22nd, 1928
                  Gloucester, Mass.     Springfield, Mass.    Sunday, July 29th, 1928
                  Springfield, Mass.    Bellows Falls, Vt.    Sunday, Aug. 5th, 1928
                  --------------------------------------------------------------------
                

At the close of the evidence the District Judge, on motion of the defendant, ordered the jury to bring in a verdict for the defendant. This is assigned as error, and in addition the admission and exclusion of certain evidence during the trial. We think there was no prejudicial error in the admission or exclusion of the evidence to which exceptions were reserved. The real issue before this court is whether the ordering of the verdict for the defendant was warranted on the evidence.

The deceased was an employee of the Bernardi Greater Shows, Inc., hereinafter referred to as the Show, which gave exhibitions throughout the country. Its equipment consisted of animals, live stock, tents, tools, and other paraphernalia for giving circus exhibitions, together with the usual performers, employees, and caretakers, and also included twelve flat cars, one box car, and two coaches for transporting its equipment and employees from place to place.

During the week ending July 22, 1928, the Show had been giving exhibitions at Lakeport, N. H. From this town arrangements had already been made by its agent to give exhibitions in Gloucester and and deliver loaded cars to the Rutland Railroad. Equipment consists of twelve (12) flat cars, one (1) box car, two (2) coaches owned by the Show; also two (2) flat cars and two (2) box cars to be furnished by the Railroad.

"Any cars furnished by the Railroad shall be transported at the same rates as cars furnished by the Show, but the Railroad assumes no obligation to furnish such cars, and they shall be furnished only at the option of and at such rental charges as may be fixed by the Operating Department of the Railroad, such charges to be in addition to all charges herein provided for."

"Fifth: The liability of the respective parties hereto as to all persons and property transported or to be transported in pursuance of this agreement shall be governed by the provisions hereof, and in that behalf it is agreed that this contract is not made with the said Railroad as a carrier, either common or special, of the said persons or property or any thereof (the compensation to be paid by said Show being wholly inadequate consideration for any such undertaking), but as a hirer to the Show of the cars and motive power and of men to operate the same, and of the right to use the road and tracks of the Railroad to the extent necessary in the premises, and that said road and tracks and the conductors, engineers, trainmen and other employees furnished by the Railroad hereunder or acting or under duty to act in the performance of or in reference to the use or service herein provided for, shall, as between the parties hereto, while used or engaged or under duty to act in such service and employment, be deemed to be the road and servants of the Show, and that the Railroad shall not be liable to the Show, or to any person or persons for any injury or damage which may happen to any persons, or to the cars or property to be or which shall be transported or served hereunder, which may be incidental or referable to the use or service herein provided for, caused by any defect in said motive power, cars, road or tracks, or unsuitableness thereof for such transportation, or by the negligence of said conductors, engineers, trainmen or other servants, or any or either of them, or arising from any cause whatsoever. The filing of this contract with any commission or other public body is not an admission that the Railroad is a common or special carrier hereunder.

"And the Show hereby expressly agrees and binds itself to indemnify, save harmless and protect the Railroad from and against any or all claims, damages, costs and demands in any way arising, incidental or referable to the subject matter of this agreement, for any loss or injury of whatsoever nature or howsoever caused, which may be sustained to the property of the Show or to any property in its use or charge or to the person or property of any of its agents, servants, performers or employees while on or about said road or the premises of said Railroad, or to the person or property of any of those who may come upon said road or said premises, because of the presence there of the Show, or its agents, servants, performers or employees, whether in any case occasioned by the negligence of the Railroad, its agents or servants, or otherwise, and whether occurring during the transportation of the Show or before, after or between runs.

"Sixth: In consideration of and for the use of the said motive power, road, servants and facilities and for the transportation of Show advertising matter and employees, agents and owners, and advertising cars on regular trains as aforesaid, the Show agrees to pay to the Railroad the sum of Eighteen hundred thirty-four and 00/100 dollars ($1834.00), of which dollars, ($ ) shall be applied for payment for transportation by the Railroad at lawful rates of the bonafide advertising agents and bill posters of the Show. Payments shall be made as follows:

                  To Railroad Agent at Lakeport, N
                    H., July 21, 1928 in advance ..... $609.00
                  To Railroad Agent at Gloucester,
                    Mass., July 28, 1928 in advance ..  721.00
                  To Railroad Agent at Springfield,
                    Mass., Aug. 4, 1928 in advance ...  504.00
                                                      ________
                       Total ........................ $1834.00
                

"In addition to the other charges provided herein, the Show shall pay as track rental $1.00 per car per day or fraction thereof, on all cars remaining at any exhibition point longer than 48 hours following the first 7:00 A. M. after arrival, Sundays excluded.

"And the Show does hereby acknowledge that it had the option of shipping its show, both persons and property at higher rates according to the Tariffs, Classifications and Rules of the Railroad and therefor receiving the security of the liability of the Railroad as a common carrier, but has voluntarily decided to ship the same under this contract at the reduced rates above named."

The train hauled by two locomotives, with full crew of engineers, firemen, brakemen, and a conductor, all furnished by the railroad, and a trainmaster, furnished by the Show, in charge of its cars, left Lakeport July 22 at 9:47 a. m. and Alton Bay at 11:03 a. m., and arrived at the point of the accident at 11:31 a. m., traveling the distance from Alton Bay of 12.46 miles in 28 minutes, or at the rate of 26.7 miles per hour.

The accident was due to a draw key, so called, falling out, which held in place the drawbar, coupling the fifth and sixth cars together, both of which cars belonged to the Show; and as a result, the drawbar dropped down on the tracks and derailed three or more flat cars belonging to the Show, on one of which the deceased was riding, and on which was loaded a large wagon which fell on the deceased, causing his death. The drawbar weighed approximately 400 pounds. The draw keys on the cars belonging to the Show were held in place by bolts. The bolts were prevented from falling out by ordinary nuts or cotter pins.

The plaintiff's declaration contains four counts: The first alleging that the defendant allowed its roadbed to become unsafe; the second alleges negligence of the defendant in operating the train; the third, that it was the duty of the railroad to inspect the cars, both those belonging to the Show and those of the railroad, and that the inspection was negligently made; and the fourth alleges general negligence without specifying in what particular.

The court's ruling was made on the ground that the contract for the transportation was a Massachusetts contract to be performed mainly in Massachusetts, and that under either the law of Massachusetts laid down in Robertson v. Old Colony Railroad Company, 156 Mass. 525, 31 N. E. 650, 32 Am. St. Rep. 482, or the law as administered by the federal courts,...