Cunningham v. Boston & M.R.R.

• Decision Date: 28 May 1940
• Citation: 34 N.E.2d 697,309 Mass. 215
• Parties: CUNNINGHAM v. BOSTON & M. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 215

34 N.E.2d 697

CUNNINGHAM

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Hampden.

May 28, 1940.

Exceptions from Superior Court, Hampden County; Baker, Judge.

Action by James Cunningham against the Boston & Maine Railroad under the Federal Employers' Liability Act. Verdict was returned for plaintiff for $7,500. The judge allowed defendant's motion for judgment, and plaintiff excepted.

Exception sustained.

Argued before FIELD, C. J., and LUMMUS, QUA, DOLAN, and COX, JJ.

J. P. Dowling, of Holyoke, for plaintiff.

R. W. Hall, of Boston, for defendant.

QUA, Justice.

This is an action under the Federal Employers' Liability Act, U.S.C. (1934 Ed.) Title 45, §§ 51-59, as amended, 45 U.S.C.A. §§ 51-59.

Upon the return of a verdict for the plaintiff the judge reserved leave under G.L.(Ter.Ed.) c. 231, § 120, to enter a verdict for the defendant. Thereafter the defendant moved that judgment be entered ‘under leave reserved’ on the defendant's ‘Motion for Directed Verdict,’ apparently referring to a motion for a directed verdict in its favor which the defendant had filed during the trial, but which the judge had then denied. The judge allowed the motion for judgment. The plaintiff excepted.

This practic was irregular. Not only had the defendant's motion for a directed verdict already been acted upon and the trial fully completed, but G.L.(Ter.Ed.) c. 231, § 120, does not refer to the entry of judgment. It refers to the entry of a ‘verdict.’ It authorizes the judge upon leave reserved with the assent of the jury ‘to enter the verdict or finding’ that, as matter of law, ought to have been entered. Goetze v. Dominick, 246 Mass. 310, 140 N.E. 802;Karlowski v. Kissock, 275 Mass. 180, 182, 175 N.E. 500;Thurlow v. Welch, 305 Mass. 220, 223, 25 N.E.2d 478. We do not discuss possible constructions or consequences of the procedure adopted (see Perry v. Loew's Boston Theatres Co., 291 Mass. 332, 333, 197 N.E. 54;Potter v. Dunphy, 297 Mass. 345, 8 N.E.2d 785;Mucha v. Northeastern Crushed Stone Co., Inc., 307 Mass. 592, 30 N.E.2d 870, since we think that in any event the verdict of the jury was warranted by evidence and ought to have been allowed to stand, unless set aside on motion for new trial.

It is conceded that the plaintiff was engaged in interstate commerce, and it is not contended that he did not come under the protection of the Federal Act, if he made out a case under that act. The only questions are whether there was evidence for the jury that negligence of the defendant's employees contributed to cause injury to the plaintiff and whether the plaintiff assumed the risk.

The defendant calls our attention to the rule that in cases under the Federal Employers' Liability Act the ‘kind or amount of evidence required to establish negligence is not subject to the control of the several states,’ but is to be determined by the applicable principles of the common law as interpreted in the federal courts. Chicago, Milwaukee & St. Paul Railway v. Coogan, 271 U.S. 472, 474, 46 S.Ct. 564, 70 L.Ed. 1041;Gulf, Mobile & Northern Railroad v. Wells, 275 U.S. 455, 457, 48 S.Ct. 151, 72 L.Ed. 370;Chicago Great Western Railroad v. Rambo, 298 U.S. 99, 101, 56 S.Ct. 693, 80 L.Ed. 1066. And we assume that the rule has not been affected by the decision in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. This rule is discussed in Shipp v. Boston & Maine Railroad, 283 Mass. 266, 270, 186 N.E. 653. We do not enlarge upon it here, since we are satisfied that as applied to this case it leads to no different result than would be reached under the familiar principles prevailing in this jurisdiction.

There was evidence of these facts. The plaintiff had been employed by the defendant for about fifteen years as a trucker at the defendant's freight house in Holyoke. There was a platform, parallel with the tracks, eight and one half to nine feet wide between the freight house and the nearest track. There was a small space between the edge of the platform and cars on this track. On January 25, 1937, the plaintiff was carrying barrels of meat from the freight house to a car on this track by means of a hand truck with two small wheels. As the plaintiff came out of the car with his truck and started ‘up’ the platform, going north, three fellow employees were pushing another two-wheeled truck ‘with a box on it’ down to the platform in a southerly direction on the side next the freight house. One of the men held the handles of the truck. ‘The box stuck out over the sides of their truck.’ When the plaintiff first saw them they were about eighty feet from the car out of which the plaintiff had come. They ‘picked up speed’ and kept coming towards the plaintiff. He stepped back to the edge of the platform with his truck, ‘wheeled around’ so that his back was next to the ‘pit,’ and gave them ‘all the room he could to pass.’ There was room enough, if they kept near the freight house wall on their right, but instead ‘they pushed their truck right into the plaintiff.’ They ‘crowded right in.’ The box on their truck struck the plaintiff and his truck while he was standing at the edge of the platform and ‘knocked him’ so that he and his truck went down between the platform and a freight car, and he sustained injuries complained of.

There is in the record no contradiction of this testimony. The record...