Vozzella v. Boston & M.R.R.

• Decision Date: 23 February 1937
• Parties: CELESTINO VOZELLA v. BOSTON AND MAINE RAILROAD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

296 Mass. 491

6 N.E.2d 770

CELESTINO VOZELLA v. BOSTON AND MAINE RAILROAD.

Supreme Judicial Court of Massachusetts, Middlesex.

February 23, 1937

May 12, 1936.

Present: RUGG, C.

J., CROSBY DONAHUE, LUMMUS, & QUA, JJ.

Negligence Railroad, Res ipsa loquitur. Evidence, Interrogatories Presumptions and burden of proof. Practice, Civil Interrogatories.

The mere fact, that a traveller on a public way was struck by the head of a grease cup as a railroad train passed him, was not sufficient to warrant an inference that the grease cup came from the train or was under the control of the railroad corporation, or that its striking the traveller was due to negligence of the employees of the corporation; the doctrine res ipsa loquitur was not applicable. Uncontradicted answers by an adverse party to interrogatories under G.L. c.

231, Section 61, et seq., bind the interrogating party introducing them.

TORT. Writ in the Superior Court dated January 24, 1932. The action was tried before Burns, J., who ordered a verdict for the defendant. The plaintiff alleged exceptions.

R. L. Sisk, for the plaintiff. R. W. Hall, for the defendant.

DONAHUE, J. The plaintiff in his declaration alleges that he was struck and injured by a piece of metal which became detached from a train of the defendant while it was passing over a grade crossing. The plaintiff, who was the only witness at the trial, testified in substance that at the time of his injury he was walking on a public highway, parallel with the railroad tracks at a grade crossing, and outside the gates which had been lowered by the crossing tender; that, while the engine of the train was passing him, he felt pain in his ankle and looking down saw a piece of iron rolling away; and that he picked it up and gave it to the crossing tender.

The plaintiff introduced in evidence certain interrogatories which he had propounded to the defendant and the answers of the defendant thereto. In those answers the following facts appear: The persons operating the train and the crossing tender were employees of the defendant. The piece of metal which the plaintiff gave to the crossing tender was "the head of a greasecup." The engine pulling the train "carried greasecups with heads similar to but not identical with the one handed" to the crossing tender. The crossing tender turned it over to another employee of the defendant but the defendant was unable to locate it. There was no evidence as to the shape, size or weight of the piece of metal picked up by the plaintiff or as to the manner in which it was attachable to a greasecup.

The defendant offered no evidence except two other interrogatories propounded by the plaintiff and the answers thereto made by the defendant. To an interrogatory as to whether the piece of metal in question came from any part of the engine or train the answer was: "It did not." To an interrogatory requiring the defendant to state whether it knew where the piece of metal came from, the reply of the person answering the interrogatories on behalf of the defendant was: "I have no idea where the piece of metal came from."

The trial judge directed the jury to return a verdict for the defendant, the parties stipulating that if the judge erred judgment should be entered for the plaintiff in the sum of $450 and that if there was no error judgment should be entered for the defendant.

The plaintiff alleges in his declaration and here contends that...