Dewing v. New York Cent. R. Co.

Decision Date06 January 1933
PartiesDEWING v. NEW YORK CENT. R. CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

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.

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;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 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 mail weighing about eighty-five pounds, intending to throw it into a car. Noticing that someone was coming up behind him, he feared that he was about to be assaulted again, dodged and threw the sack at the same time, felt something snap in his body, and found that he was hurt. In fact, no one touched the plaintiff at that time.

The point is open that the plaintiff was engaged in interstate transportation at the time of the injury upon which his alleged cause of action is founded (see Reading Co. v. Koons, 271 U. S. 58, 46 S. Ct. 405, 70 L. Ed. 835), that his rights depend upon the Federal Employers' Liability Act, and consequently that he cannot recover upon a count based upon the common law of Massachusetts. Griffin v. New York, New Haven & Hartford Railroad, 279 Mass. 511, 181 N. E. 839. If any part of the work in which the plaintiff was engaged at the moment of the injury upon which his alleged cause of action is founded was interstate transportation, that part gives color to the whole, and the Federal Employers' Liability Act becomes the sole source and measure of his rights. Philadelphia & Reading Railway v. Di Donato, 256 U. S. 327, 41 S. Ct. 516, 65 L. Ed. 955;Philadelphia & Reading Railway v. Polk, 256 U. S. 332, 41 S. Ct. 518, 65 L. Ed. 958; Carberry v. Delaware, Lackawanna & Western Railroad, 93 N. J. Law, 414, 108 A. 364.

The plaintiff testified that at the time he was hurt on August 22, 1927, he was loading mail for transportation to places in Massachusetts and Vermont. Whether he was handling intrastate or interstate mail at the times of the many earlier assaults did not appear, but from the nature of his work it is incredible that his tormentors invariably chose...

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  • Wallace v. Ludwig
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 31 d4 Outubro d4 1935
    ... ... 1013,17 L.R.A. 753. It was said in Leahy v. Standard Oil ... Company of New York, 224 Mass. 352, 361-362, 112 N.E ... 950, that it ‘ must now be taken to be settled (at ... 231; Kaufman v. Boston Dye House, ... Inc., 280 Mass. 161, 169, 182 N.E. 297; Dewing v ... New York Central Railroad, 281 Mass. 351, 354, 183 N.E ... 754; Scheffer v. Railroad Co., ... ...
  • Lavender v. Illinois Cent. R. Co.
    • United States
    • Missouri Supreme Court
    • 14 d1 Março d1 1949
    ... ... 110, 37 L.R.A. (N.S.) 519; Sloven ... v. L. & N.R. Co., 115 Ky. 447, 74 S.W. 171; Priest ... v. Woolworth etc. Co., 62 S.W.2d 926; Dewing v ... N.Y.C.R.R., 183 N.W. 754; I. & G.N.R.R. v ... Cooper, 32 S.W. 577 (2) The following cases hold the ... same rule applicable to cases ... 1915C, 37, 8 N.C.C.A. 167, Griffin v. Baltimore & Ohio R ... Co., (W. Va.) 126 S.E. 571, 40 A.L.R. 1326, Dewing ... v. New York Central R. Co., 183 N.E. 754, Galveston ... H. & S.A. Ry. Co. v. Currie, 96 S.W. 1073, Texas ... Breeders & Racing Assn. v. Blanchard, 81 F.2d ... ...
  • Osment v. Pitcairn
    • United States
    • Missouri Supreme Court
    • 16 d2 Dezembro d2 1941
    ... ... habitually addicted to the vulgar practice of ... "goosing." [Dewing v. New York Cent. R. Co., 281 ... Mass. 351, 183 N.E. 754.] There the court said, 183 N. E. l ... ...
  • Osment v. Pitcairn, 37673.
    • United States
    • Missouri Supreme Court
    • 16 d2 Dezembro d2 1941
    ...to an interstate employee injured by a man habitually addicted to the vulgar practice of "goosing." [Dewing v. New York Cent. R. Co., 281 Mass. 351, 183 N.E. 754.] There the court said, 183 N.E. l.c. 755, "Unquestionably, the assaults were wholly outside the scope of the employment of those......
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