Crowe v. Boston & M.R.R.

• Decision Date: 05 July 1922
• Citation: 242 Mass. 389,136 N.E. 189
• Parties: CROWE v. BOSTON & M. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 389

136 N.E. 189

CROWE

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Middlesex.

July 5, 1922.

Report from Superior Court, Middlesex County; Charles U. Bell, Judge.

Action by Mary K. Crowe, administratrix, against the Boston & Maine Railroad, for the death of Daniel J. Crowe. Reported from the superior court after the return of a special verdict on the answers of the jury and a statement of facts and evidence. Judgment for defendant.

Plaintiff's intestate was injured while coupling an engine to a car as a result of the couplers ‘locking by’ or passing laterally by each other without coupling, permitting the ends of the cars to come together, crushing him. The jury in answers to special issues found that deceased was engaged in interstate commerce; that the coupler was an automatic coupler; that it was necessary for deceased to go between the cars to set the drawbar; but that it was not necessary to be between the cars at the moment of coupling; that want of due care on the part of defendant's servants did not contribute to the injury; that the construction of the locomotive was not defective and dangerous; that deceased assumed the risk; and that defendant did not fail to warn deceased. The other questions referred to damages, and were not answered.Philip J. Sondheim, of Boston, for plaintiff.

Trull, Wier & O'Donoghue, of Lowell, for defendant.

JENNEY, J.

Mary K. Crowe, as administratrix of the estate of Daniel J. Crowe, who is hereinafter designated as the plaintiff, brings this action against the Boston & Maine Railroad to enforce liability under the federal Employers' Liability Act¹ because of its failure to comply with the provisions of the federal Safety Appliance Act² as to the use of automatic couplers.

The only controversy now existing is whether there was a violation of the latter act by a failure to equip the engine and the car with the couplers required thereby, or in its ultimate analysis whether there was evidence justifying the finding of the jury hereinafter referred to that the couplers actually in use were automatic, locking by impact, and that it was not necessary to be between the car and engine when they came together. The statute required the equipment of the engine as well as of the car. Johnson v. Southern Pacific Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363;Schlemmer v. Buffalo, Rochester & Pittsburg Railway, 205 U. S. 1, 27 Sup. Ct. 407, 51 L. Ed. 681;Pennell v. Philadelphia & Reading Railway, 231 U. S. 675, 34 Sup. Ct. 220, 58 L. Ed. 430;Southern Railway v. Crockett, 234 U. S. 725, 34 Sup. Ct. 897, 58 L. Ed. 1564.

At the close of the evidence the judgment submitted certain issues to the jury. To this no exception was taken; nor, so far as disclosed by the record, did either party contend that there was no evidence warranting his action. See Richardson v. Devine, 193 Mass. 336, 79 N. E. 771;Albright v. Sherer, 223 Mass. 39, 111 N. E. 711. From the answers it appeared that the plaintiff was engaged in interstate commerce. Neither party objects to this conclusion and it is not necessary to state the facts bearing thereon. See, as to the pertinency of this issue, Texas Pacific Railway v. Rigsby, 241 U. S. 33, 36 Sup. Ct. 482, 60 L. Ed. 874;San Antonio & Aransas Pass Railway v. Wagner, 241 U. S. 476, 36 Sup. Ct. 626, 60 L. Ed. 1110. The jury found that the coupler was automatic; that it was necessary for the deceased to go between the cars to set the drawbar but that it was not necessary to be in that position at the moment of coupling; that the construction of the locomotive was neither dangerous nor defective; that no want of due care on the part of the servants of the defendant contributed to the injury; and that the defendant having been warned as to the risk of a known danger assumed it. The answers were received and affirmed without objection.

The record does not include the judge's charge, and, in the absence of any exception, it must be assumed that the jury were fully and accurately instructed as to what constitutes automatic couplers within the requirements of the act. M. & M. C., Inc., v. Hood Rubber Co. 226 Mass. 181, 115 N. E. 234. The answers are considered on the basis that they were made in the light of such instructions.

The case is here upon a report, under St. 1913, c. 716, § 2, now G. L. c. 231, § 124, made ‘on the answers of the jury’ and a ‘statement of facts and evidence,’ which is ‘all of the evidence * * * material to the issues of law raised.’ The report thus concludes:

‘Judgment to be entered for the defendant or for the plaintiff, and a new trial to be ordered on the questions of damages, or that a new trial be ordered generally, or such other orders made as law and justice may require.’

A report should show what questions arose in the trial court or were intended to be reported for the determination of this court, and a judge has no authority to include therein questions of law which might have been and were not raised. Wright v. Quirk, 105 Mass. 44;Churchill v. Palmer, 115 Mass. 310;Aldrich v. Springfield, Athol & Northeastern Railroad, 125 Mass. 404;Smith v. Lincoln, 198 Mass. 388, 392, 84 N. E. 498;Atlantic Maritime Co. v. Gloucester, 228 Mass. 519, 117 N. E. 924;Sterling v. Frederick Leyland & Co., Ltd., 136 N. E. 60. If he is not asked at the trial to rule as to the legal effect of the entire evidence, he has no right to raise that question after verdict. Aldrich v. Springfield, Athol & Northeastern Railroad, supra.

The report in this case is informal, but we consider it on the basis that it was intended to bring before us the plaintiff's contention made at the trial that on the evidence he was entitled to a verdict notwithstanding the answers of the jury, or, putting it in another way, that the uncontroverted facts as to the condition of the coupler not only warranted, but compelled, a finding in his favor. See Scanlon v. Carey, 207 Mass. 285, 93 N. E. 697.

The plaintiff had been for a long time in the employ of the defendant as a freight brakeman and on June 19, 1915, was the head brakeman of a crew that were using a dummy engine in shifting cars in the yard of the Saco-Lowell shops in Lowell. The engine was standing on a sharp curve with its rear end about three or four feet from the end of one of seven cars which also were at rest. The plaintiff had been directed to couple the engine to these cars, and just prior to the accident he stood upon the footboard of the engine for the purpose of adjusting the couplers which were at the outer end of the drawbars. See Southern Railway v. Crockett, 234 U. S. 725, 735, 34 Sup. Ct. 897, 58 L. Ed. 1564. When, in response to his signal, the engine backed, he was crushed between it and the car, as the couplers slipped by each other without locking by impact and the engine and car came within a few inches of each other. The injury resulted in death.

The curve in the track within the private yard in which the plaintiff was at work when he received his injury was so sharp that a regular locomotive could not be used. The play in the drawbar of the locomotive was six inches on each side of its center, and because of this latitude of motion it was necessary for the plaintiff to go between the car and engine and by hand adjust the position of the coupler on the drawbar of the engine so that the knuckles or gripping surfaces of the couplers, which were on the free or outer end of the drawbars, would come squarely on each other and lock by impact. In ordinary engines and cars the play was only two or three inches. There was no evidence that after such adjustment had been made there was any necessity of remaining between the car and engine.

The obligation of the defendant to furnish couplers conforming to the requirements of the act was absolute and unconditional. If that duty was not performed, it was liable, leaving aside the questions relating to the plaintiff's assumption of risk and other possible defenses, although it exercised reasonable care, if an injury resulted as a proximate cause. St. Louis, Iron Mountain & Southern Railway v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061;Chicago, Burlington & Quincy Railway v. United States, 220 U. S. 559, 31 Sup. Ct. 612, ...