Dewing v. New York Central Railroad Co.

• Citation: 281 Mass. 351
• Parties: CHARLES R. DEWING v. NEW YORK CENTRAL RAILROAD COMPANY.
• Decision Date: 03 January 1933
• Court: United States State Supreme Judicial Court of Massachusetts

281 Mass. 351

CHARLES R. DEWING v. NEW YORK CENTRAL RAILROAD COMPANY.

Supreme Judicial Court of Massachusetts, Hampden.

January 3, 1933

September 22, 1932.

Present: RUGG, C.

J., CROSBY, WAIT DONAHUE, & LUMMUS, JJ.

Pleading, Civil Declaration. Negligence, Employer's liability. Interstate Commerce.

A declaration in an action of tort against a railroad corporation by one of its employees, which contained allegations merely that the plaintiff "was greatly injured by reason of the negligence of the defendant, and has suffered great pain and body anguish [sic] of mind," cannot be construed as stating a case under the Federal employers' liability act, but must be deemed to be a count based upon the common law.

Where, at the trial of such action, it appeared that the defendant was not insured under the Massachusetts workmen's compensation act; that the plaintiff at the time of his injury was employed by the defendant as a mail porter, his work being 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, and was loading mail for transportation to places in Massachusetts and Vermont; that, owing to rough play in which his fellow employees, including his immediate foreman, had engaged for a period of over a year, using him as a victim, he was apprehensive of an assault as he was lifting a sack of mail to a car, dodged and threw the sack at the same time, felt something snap in his body, and found that he was hurt; and that the previous assaults had not impaired his health. There was no evidence that the previous assaults had had any continuing effect. A verdict was ordered for the defendant.

Held, that (1) The plaintiff's cause of action, if any he had against the defendant, arose at the moment he was hurt;

(2) At that moment the plaintiff was engaged in the interstate transportation of mail because some of such mail was destined for another

State; (3) The plaintiff being engaged in interstate commerce at the time the cause of action arose, he could not recover at common law;

(4) The verdict for the defendant rightly was ordered.

TORT, with a declaration described in the opinion. Writ dated August 17 1929.

In the Superior Court, the action was tried before Weed, J. Material evidence is stated in the opinion. Subject to leave reserved under G.L. (Ter. Ed.) c. 231, Section 120, a verdict was recorded for the plaintiff in the sum of $750. The judge then ordered entered a verdict for the defendant, and the plaintiff alleged exceptions.

The case was submitted on briefs. R.J. Talbot & R. Lasker, for the plaintiff.

J.P. Kirby, for the defendant.

LUMMUS, J. The plaintiff, having waived the second count of his declaration which was drawn under the Federal employers' liability act (35 U.S. Sts. at Large, 65, 66, c. 149, 36 U.S. Sts. at Large, 291, c. 143), 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; Atlantic Coast Line Railroad v. Mims, 242 U.S. 532; Nevada-California-Oregon Railway v. Burrus, 244 U.S. 103; Lee v. Central of Georgia Railway, 252 U.S. 109; New York Central & Hudson River Railroad v. Kinney, 260 U.S. 340; Hogarty v. Philadelphia & Reading Railway, 255 Penn. St. 236), 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, ante, 292. Renaldi v. New York Central Railroad, 256 Mass. 337 . Griffin v. New York, New Haven & Hartford Railroad, 279 Mass. 511 . Brady v. Ludlow Manuf. Co. 154 Mass. 468 . Clare v. New York & New England Railroad, 172 Mass. 211 . G.L. (Ter. Ed.) c. 231, Section 7, Second.

The evidence tended to prove the following. The defendant was not insured under the Massachusetts workmen's compensation act. See Sylvain v. Boston & Maine Railroad, 280 Mass. 503 . 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 some one 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...