Gregory v. Maine Cent. R. Co.

• Citation: 317 Mass. 636,59 N.E.2d 471
• Parties: PHILLIP L. GREGORY v. MAINE CENTRAL RAILROAD COMPANY.
• Decision Date: 06 February 1945
• Court: United States State Supreme Judicial Court of Massachusetts

317 Mass. 636

59 N.E.2d 471

PHILLIP L. GREGORY v. MAINE CENTRAL RAILROAD COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

February 6, 1945

November 8, 1944.

Present: FIELD, C.

J., LUMMUS, DOLAN RONAN, & WILKINS, JJ.

Negligence Railroad: spur track; Contributory; Assumption of risk; Last clear chance; Employer's rule. Evidence, Presumptions and burden of proof. Conflict of Laws. Practice, Civil, Requests rulings and instructions.

Evidence of the circumstances in which a railroad locomotive, backing on a spur track inside a large, well lighted and noisy building under construction, struck an invitee of the owner of the building working within the rails of the track, who received no warning of the approach of the locomotive in time to escape being struck, warranted a finding of negligence of the railroad corporation and did not as matter of law require a finding of contributory negligence or voluntary assumption of risk on the part of the injured person.

In an action in Massachusetts for personal injuries sustained through operation of a railroad locomotive in Maine, the law of Maine determined the question of substantive law, what conduct of the plaintiff constituted contributory negligence; but the Massachusetts statute, G.

L. (Ter. Ed.) c 231, Section 85, casting the burden of proof of contributory negligence on the defendant, was applicable as a matter of procedure, and the law of Massachusetts governed the determination of the further procedural question, whether the evidence required a finding as matter of law that the plaintiff had been guilty of such conduct under the law of Maine.

Requests for rulings, by which the defendant in an action for negligence sought to obtain rulings as to particular parts of his whole conduct involved in the plaintiff's injury or as to the conduct of specified employees of the defendant involved therein, were properly refused under the rule that a trial judge cannot be required to comment on or emphasize or make a ruling of law on an inconclusive fragment of the evidence or subsidiary facts bearing on an issue.

Statement by LUMMUS, J., of the doctrine of the "last clear chance" in the law of Maine.

It could not properly have been ruled that the doctrine of the "last clear chance" was not applicable on the evidence at the trial of an action involving an injury to the plaintiff through being struck by a backing railroad locomotive while he was working between the rails of a spur track in Maine.

At the trial of an action for negligence resulting in injury to the plaintiff in Maine, the defendant, who had the burden of proving contributory negligence on the part of the plaintiff, also had the incidental burden of proving that the plaintiff, if found negligent, was not entitled to the benefit of the doctrine of the "last clear chance."

If due care on the part of a railroad corporation toward one on its track required that a trainman should ride on the tender of a backing locomotive, the corporation might be found wanting in due care through not having a trainman there notwithstanding that one of its rules stated that no employee should ride on the "leading end of a moving engine."

TORT. Writ in the Superior Court dated December 29, 1941. The action was tried before Cabot, J.

F. P. Garland, (J.

P. Sullivan with him,) for the defendant.

T. H. Mahony, for the plaintiff.

LUMMUS, J. This is an action of tort for personal injuries sustained on November 15, 1940, at East Brunswick in the State of Maine. The plaintiff was employed as a construction engineer by the Morton C. Tuttle Company, which was erecting a building seven hundred fifty feet long from east to west and ninety feet wide. Under a contract with the Bath Iron Works, the owner of the building, the defendant had constructed a spur track from its main line to the east of the building, running westerly through the building to its westerly end, and was operating a freight train on the spur track for the purpose of hauling building materials. The spur track had become the property of the Bath Iron Works. While the train was backing easterly out of the building, it struck and injured the plaintiff. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions, one of which was to the denial of a motion for a directed verdict in favor of the defendant.

There was evidence of the following facts. The walls of the building were up, and work was being done on the floor. Several hundred workmen were working in the building, and had been for a week or more. A welding floor was being built, consisting of small concrete blocks or pads, partly sunk into the ground, surmounted by metal plates, with heavy steel beams on the plates, and on top of the beams steel plates about five feet square. The spur track in question was in the southerly part of the building, and the welding floor began close to that track and extended northerly. Whenever a train entered the building there would be a man walking in front of or by the side of the train. The plaintiff saw the train enter the building on the occasion in question, and knew that ultimately it would go out again. When the train had been in the building about three minutes the plaintiff crouched down in the spur track, about sixty feet behind the train, for the purpose of inspecting the welding floor, sighting along the steel beams that had been installed. The locomotive tender was nearest him, and beyond that was the locomotive, which was attached to freight cars.

Suddenly he realized that the train had started, and was only about five feet away, moving slowly. No one was walking in front of or beside the train, and no one was riding on the tender. There was no rear brakeman. The engineer was facing away from him. He received no warning. Before he could escape he was run down and severely injured.

Many workmen of various trades were constantly working on the floor of the building, in the neighborhood of the spur track, and often had occasion to work within the rails of that track or to cross it. The building was brilliantly lighted, and the plaintiff was wearing a conspicuous yellow slicker. There was much noise, caused by hammering, riveting, wheeling concrete buggies, mixing concrete, and the talk of the workmen. Coal was piled up on the tender to a height of thirteen or fourteen feet above the floor, and the engineer could not see over the coal a person in the position of the plaintiff.

1. It is conceded that the plaintiff was a business invitee, entitled to have reasonable care used for his safety. Requests for instructions to the contrary were properly refused. We think that the defendant could have been found to be negligent. The work of construction was the main thing. The transportation of materials was only ancillary. The defendant could be found to have known that the work of construction could not be expected to stop merely because a freight train was in the building. It could be found to have known that many workmen were working on the floor, and might have occasion to cross the track or even to work in the track. Workmen could not reasonably be expected to leave their work to inquire of the train crew how long the train would remain in the building or when it would move out. The time of its stay might be minutes or hours. The jury might find that workmen were entitled to rely upon reasonable warning before the train backed out. Although witnesses for the defendant testified that a bell was sounded, the jury could find that if it was sounded it was not heard, and that the defendant could not reasonably rely upon its being heard, above the noises already described. The jury could find that the absence of other precautions was negligent. New York Central Railroad v. Marcone, 281 U.S. 345, 349, 350. Tennant v. Peoria & Pekin Union Railway, 321 U.S. 29. Engel v. Boston Ice Co. 295 Mass. 428 , 431, 432. Hines v. Stanley G. I. Electric Manuf. Co. 199 Mass. 522 , 526. Frasciello v. Baer, 304 Mass. 643 , 645.

2. What conduct constitutes contributory negligence of the plaintiff is a question of substantive law governed by the law of Maine, where the injury happened. Smith v. Brown, 302 Mass. 432 , 433. Murphy v. Smith, 307 Mass.

64, 65. Legere v. Tatro, 315 Mass. 141 . But the law of the forum -- Massachusetts -- governs the procedural question of the burden of proof, and under our statute the burden of proof of contributory negligence is on the defendant. Levy v. Steiger, 233 Mass. 600 . Smith v. Brown, 302 Mass. 432, 433. Russell v. Berger, 314 Mass. 500 , 502. Palmer v. Hoffman, 318 U.S. 109, 117. Sampson v. Channell, 110 F.2d 754, 128 Am. L. R. 394, certiorari denied, Channell v. Sampson, 310 U.S. 650. The applicable substantive law of Maine as to what conduct constitutes contributory negligence goes no farther than to define it as a failure, contributing to the injury, to exercise as much care as the ordinarily prudent man would have exercised under like circumstances. Whether the evidence conclusively shows such failure or not, is a procedural question to be determined according to rules of practice in force in Massachusetts. Peterson v. Boston & Maine Railroad, 310 Mass. 45 , 47, 48. Bresnahan v. Proman, 312 Mass. 97, 100. Pilgrim v. MacGibbon, 313 Mass. 290 , 291, 292, 296, et seq.

The conduct of the plaintiff was not negligent as matter of law. He had a right to rely to a substantial extent upon receiving notice before the train bore down upon him. For the purposes of the motion for a directed verdict we need not consider the doctrine of the last clear chance, as it exists in Maine, for that doctrine applies only where in some respect the conduct of a plaintiff has been negligent. There was no error in submitting the case to...