Becker v. Eastern Massachusetts St. Ry. Co.

• Decision Date: 29 June 1932
• Citation: 181 N.E. 757,279 Mass. 435
• Parties: BECKER v. EASTERN MASSACHUSETTS ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

279 Mass. 435

181 N.E. 757

BECKER

v.EASTERN MASSACHUSETTS ST. RY. CO.

Supreme Judicial Court of Massachusetts, Essex.

June 29, 1932.

Exceptions from Superior Court, Essex County; Edward F. Hanify, Judge.

Action by Rudolph Becker against the Eastern Massachusetts Street Railway Company. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled.

A. X. Dooley, of Lawrence, and W. J. Barry, of Boston, for plaintiff.

I. W. Sargent, of Lawrence, for defendant.

FIELD, J.

This is an action of tort to recover compensation for personal injuries sustained by the plaintiff on March 22, 1929, alleged to have been caused by the defendant's negligence. The writ is dated December 9, 1929. The answer is a general denial and contributory negligence.

The defendant moved for a directed verdict on the general ground that upon the evidence the plaintiff was not entitled to recover, and on the specific grounds that the evidence did not warrant a finding that the negligence of the defendant was the sole or a contributing cause of the accident or that the plaintiff was free from contributory negligence, and that there was no evidence ‘that compensation for the injury relied on in this case was paid to the plaintiff under the provisions of chapter 152 of the General Laws or any acts in amendment thereof,’ or was so paid ‘by the insurer of his employer named in the plaintiff's stipulation filed in this case on March 16, 1931.’ The motion was denied and there was a verdict for the plaintiff. The case is here upon the defendant's exceptions to the denial of its motion for a directed verdict and to the exclusion of evidence and the denial of motions bearing upon the effect of the receipt of compensation by the plaintiff under the Workmen's Compensation Law. G. L. c. 152, as amended. The questions raised will be considered in two groups: (a) those bearing upon the defendant's liability apart from the effect of the Workmen's Compensation Law, and (b) those arising in connection with the application of that law to this case.

First. Apart from the effect of the Workmen's Compensation Law-to be considered later-the motion for a directed verdict was denied rightly.

1. There was evidence for the jury that negligence of the defendant caused injury to the plaintiff.

The accident happened about one o'clock on the afternoon of March 22, 1929. At that time the Phoenix Bridge Company, under a contract with the Boston & Maine Railroad, was engaged in rebuilding a railroad bridge which spanned from north to south a highway running east and west upon which the defendant operated electric trolley cars on double tracks. The plaintiff, an employee of the Phoenix Bridge Company, was working on a staging under the bridge and over the highway. The staging was south of the southerly car track and consisted of planks laid lengthwise of the bridge upon two beams six inches wide and four inches high and about twenty feet long, fastened by ropes below the girders. Though there was some conflict in the testimony it could have been found that the beams were lashed tightly against the bottoms of the girders, that the staging was about three feet above the tops of the defendant's cars, that the northerly beam was three or three and a half feet from the nearer trolley wire, and that the planks did not project beyond that beam. At the time of the accident one of the defendant's cars was proceeding easterly under the bridge. As it passed the staging the northerly beam broke about in the middle, causing the plaintiff to be thrown to the ground and injured.

It appeared that the defendant's car was equipped with two trolley poles attached to the top of the car by swivels, that each pole was of tubular wrought steel, varying from one and one-half to one inch in diameter, thirteen feet long with a wheel at the end for contract with the trolley wire, that at the base of each pole was a heavy spring which held the pole upright when in use, that there was a steel or iron hook on the car to hold each pole stationary along the top of the car when the pole was not in use and a ‘trolley catcher’-a reel and rope-to stop the pole from rising under pressure of the spring when it was released from the hook. There was evidence that the ‘trolley catcher’ might stop the pole either the instant it was released or after it had gone part way up, that if the pole was under the hook it would be clear of the staging, that there was nothing under the bridge which would have caught the pole if it had been under the hook and that cars had passed under the staging without mishap.

Fellow employees of the plaintiff working on the bridge testified, in substance, that the car in question approached the bridge at a speed of about twenty miles an hour, that when it was approaching the bridge, and was about twenty feet away, the front pole, not then in use, was not under the hook, but was loose and swaying from side to side, that when the car passed under the bridge there was a ‘crash,’ a sound of steel being struck and timber broken, that the beam then broke-according to one witness it ‘was broken in halves with the pieces dangling in the ropes'-and that after the accident it ‘showed on its six inch side a mark like a scrape along approximately its whole length’ which it had not shown before the accident. There was evidence that the car stopped when the front part of it had passed under the bridge, that the front trolley pole was not held by anything but, at a point about three feet from its outer end, was bent southerly in a ‘hook’ or ‘half circle’ in contact with the bottom of the easterly girder of the bridge. The evidence varied in details and in important respects was contradictory, but in its aspect most favorable to the plaintiff clearly warranted the inference that the trolley pole was loose before and at the time the car passed under the bridge and, because loose, came in contact with the northerly beam of the staging. Nor is anything disclosed by the evidence which makes the inference unreasonable that that beam was broken by the impact of the trolley pole. Such conclusions would not be based on mere conjecture.

The evidence warranted the further finding that the trolley pole came in contact with the beam of the staging because of the defendant's negligence. It could have been found that the reasonable care which the defendant was required to exercise under the circumstances of this case to keep the idle trolley pole from striking the beam required the exercise of reasonable care, when the car passed under the bridge, to have the pole under the hook provided to hold it in place when not in use. From the fact, which could be found, that the pole was not under the hook when the car was approaching the bridge and from the testimony of the operator of the car that no operator could help noticing the swaying of the pole if it was off the hook, it could be inferred that the operator did not exercise the requisite care to see to it that the pole was fastened properly.

2. The defendant properly does not arrgue that the evidence as matter of law required a finding that its burden of proving contributory negligence on the part of the plaintiff was sustained. G. L. c. 231, § 85.

Second. There was no error in the denial of the defendant's motion for a directed verdict for lack of evidence that compensation was paid to the plaintiff under the Workmen's Compensation Law, or in the denial of its other motions and requests and the exclusion of evidence offered by it bearing upon the application of that law to the case.

G. L. c. 152, § 15 (amended after the accident and before the date of the writ by St. 1929, c. 326, § 1, in certain respects not here relevant), provides in part that ‘Where the injury for which compensation is payable was caused under circumstances creating a legal liability in some person other than the insured to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages or against the insurer for compensaition under this chapter, but not against both. If compensation be paid under this chapter, the insurer may enforce, in the name of the employee or in its own name and for its own benefit, the liability of such other person; and in case the insurer recovers a sum greater than that paid by it to the employee, four fifths of the excess shall be paid to the employee. * * *’

There was no reference to payment of compensation to the plaintiff under the Workmen's Compensation Law in the writ, declaration or answer. Before the trial the defendant moved to amend its answer by adding an allegation to the effect that the alleged injury to the plaintiff was received in the course of the plaintiff's employment by the Phoenix Bridge Company, insured with the Ocean Accident & Guarantee Corporation, Ltd., under the Workmen's Compensation Law, and that the plaintiff has elected to proceed thereunder against the insurer and has agreed u on compensation to be paid to him. The record of the disposition of this motion is as follows: ‘Counsel for plff. having stated in open court that the action is brought for the benefit of Ocean Guarantee & Accident Co., Ltd., insurer of plff., the motion is denied.’ At the opening of the trial the defenant made a motion to amend its answer by adding an allegation that the plaintiff had proceeded under the Workmen's Compensation Law and received compensation thereunder. This motion also was denied. The plaintiff, however, filed a so-called ‘stipulation’ stating, in substance, that at the time of the accident he was in the employ of the Phoenix Bridge Company, insured under the Workmen's Compensation Law by the Ocean Accident & Guarantee Corporation, Ltd., that the plaintiff...