Dewing v. New York Cent. R. Co.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: LUMMUS
• Citation: 183 N.E. 754,281 Mass. 351
• Decision Date: 06 January 1933
• Parties: DEWING v. NEW YORK CENT. R. CO.

281 Mass. 351
183 N.E. 754

DEWING
v.
NEW YORK CENT. R. CO.

Supreme Judicial Court of Massachusetts, Hampden.

Jan. 6, 1933.

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

Action by Charles R. Dewing against the New York Central Railroad Company. A verdict for defendant was entered by the trial judge by leave reserved in place of the jury's verdict, and plaintiff brings exceptions.

Exceptions overruled.

[281 Mass. 352]R. J. Talbot and R. Lasker, both of Springfield, for plaintiff.

J. P. Kirby, of Springfield, for defendant.

LUMMUS, J.

[2] The plaintiff, having waived the second count of his declaration, which was drawn under the Federal Employers' Liability Act (U. S. C., title 45, § 51 et seq. [45 USCA §§ 51-59]), obtained a verdict from the jury upon the first count, which alleged merely that ‘he was greatly injured by reason of the negligence of the defendant, and has suffered great pain and body anguish [sic] of mind.’ This vague allegation, under our practice which in this respect controls (Central Vermont Railway v. White, 238 U. S. 507, 35 S. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252;Atlantic Coast Line Railroad v. Mims, 242 U. S. 532, 37 S. Ct. 188, 61 L. Ed. 476;Nevada-California-Oregon Railway v. Burrus, 244 U. S. 103, 37 S. Ct. 576, 61 L. Ed. 1019;Lee v. Central of Georgia Railway, 252 U. S. 109, 40 S. Ct. 254, 64 L. Ed. 482;

[183 N.E. 755]

New York Central & Hudson River Railroad v. Kinney, 260 U. S. 340, 43 S. Ct. 122, 67 L. Ed. 294;Hogarty v. Philadelphia & Reading Railway, 255 Pa. 236, 99 A. 741, 8 A. L. R. 1386), cannot be construed as stating a case under the Federal Employers' Liability Act, but must be deemed a count upon the common law. Hughes v. Gaston (Mass.) 183 N. E. 752.Renaldi v. New York Central Railroad, 256 Mass. 337, 152 N. E. 373;Griffin v. New York, New Haven & Hartford Railroad, 279 Mass. 511, 181 N. E. 839;Brady v. Ludlow Manuf. Co., 154 Mass. 468, 28 N. E. 901;Clare v. New York & New England Railroad, 172 Mass. 211, 51 N. E. 1083, G. L. (Ter. Ed.) c. 231, § 7, Second.

The evidence tended to prove the following. The defendant was not insured under the Massachusetts Workmen's Compensation Act (G. L. [Ter. Ed.] c. 152). See Sylvain v. Boston & Maine Railroad (Mass.) 182 N. E. 835. The plaintiff was employed by the defendant as a mail porter, working nights, from June, 1926, until after he was hurt on August 22, 1927. His work was to lift sacks of mail, coming to the Union Station in Springfield from the post office or from mail trains, into mail cars to be carried to their destinations. The mail porters worked in gangs of four men. Beginning soon [281 Mass. 353]after the plaintiff went to work for the defendant, the men in the gang indulged in rough play, with the plaintiff as the usual victim. A favorite trick, called ‘goosing,’ consisted in a vulgar assault with the hand from behind while the plaintiff was braced to lift a sack of mail. This happened twenty or thirty times a night, and was often painful and distressing; but it did not affect the plaintiff's general health. The foreman of the gang was one Church, and over him was the superintendent in charge of mail cars at the station, one McCarthy. Church never indulged in horseplay, but he saw it and did not stop it. One Vogel was the ringleader in the rude sport. Six or seven weeks before August 22, 1927, Vogel became foreman in place of Church, and after that the ‘goosing’ became worse, Vogel continuing to take part in it. The plaintiff never complained to any authority higher than the foreman.

On the evening of August 22, 1927, the plaintiff was subjected to the ‘goosing’ three or four times, and was ‘all stirred up’ as a result. Shortly afterwards, on the same evening, he was lifting a sack of...