Hietala v. Boston & A.R.R.
| Decision Date | 18 July 1936 |
| Parties | HIETALA v. BOSTON & A. R. R. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Report from Superior Court, Berkshire County; Gibbs, Judge.
Action of tort by Walter Hietala against the Boston & Albany Railroad, which was tried before a single justice in the superior court. Verdict was recorded for the plaintiff in the sum of $6,000, and the court ordered a verdict to be entered for the defendant pursuant to leave reserved. On report by the single justice.
Judgment for the plaintiff on the verdict returned by the jury.
J. A. Anderson, of New York City, for plaintiff.
F. M Myers, of Pittsfield, for defendant.
This is an action under the Federal Employers' Liability Act (Act of April 22, 1908, c. 149, 35 U.S.Stat. at Large, 65 U.S.C title 45, § 51 et seq. [42 U.S.C.A. § 51 et seq.]) for personal injuries sustained by an employee, engaged in interstate commerce, of an interstate common carrier by railroad.
The evidence tended to show the following facts. On August 24 1929, the plaintiff was one of a gang of laborers engaged in removing the earth from between the ties of the defendant's tracks at Pittsfield. He had been working there about twenty days. He knew that trains were running on the tracks. Having been directed to get a pick, he started eastward along the straight southerly track on which east bound trains ran, to get a pick which was in a tool box under the Second Street bridge. He walked in the middle of that track, for there were men working on each side and the ground was torn up. He met a train, travelling westward on the northerly track. A locomotive that had brought a train into the Pittsfield station, westerly of the locus, started easterly along the track on which the plaintiff was walking, for the purpose of turning around at a junction easterly of the locus. The crew of the locomotive were familiar with the work being done and with the presence of many laborers on and about the tracks. Orders of the defendant had limited all trains there to a speed of fifteen miles an hour. The locomotive gave no signal of its approach until the instant before the injury. Two men on the ground had been detailed to give warning with police whistles of the approach of locomotives, but the plaintiff heard no such warning during his journey, although he was listening. Hough v. Boston Elevated Railway Co., 262 Mass. 91, 159 N.E. 526. During his journey he looked back three times, but saw nothing coming along the track behind him. When he looked back last he was forty or fifty feet westerly from the First Street bridge. When he had gone about two thirds of the way under that bridge, he heard the locomotive whistle, and jumped off the track, but was struck on the arm by the locomotive. Evidence for the defendant tended to show that the plaintiff was walking clear of the track, and was struck when he suddenly came up on the track. But the evidence for the plaintiff was as stated.
The jury returned a verdict for the plaintiff and assessed damages of $6,000. On leave reserved (G.L.[Ter.Ed.] c. 231, § 120), a verdict for the defendant was entered. The plaintiff excepted, and the judge reported the case.
The plaintiff had to prove that the injury resulted ‘ in whole or in part from the negligence of any of the officers, agents, or employees of such carrier’ (Act of April 22, 1908, c. 149, § 1, 35 U.S.Stat. at Large, 65, U.S.C. title 45, § 51 [45 U.S.C.A. § 51]), having causal relation to the injury. New Orleans & Northeastern Railroad Co. v. Harris, 247 U.S. 367, 38 S.Ct. 535, 62 L.Ed. 1167; Chesapeake & Ohio Railroad Co. v. Stapleton, 279 U.S. 587, 49 S.Ct. 442, 73 L.Ed. 861; Jamison v. Encarnacion, 281 U.S. 635, 50 S.Ct. 440, 74 L.Ed. 1082; Alpha Steamship Corporation v. Cain, 281 U.S. 642, 50 S.Ct. 443, 74 L.Ed. 1086; Northwestern Pacific Railroad Co. v. Bobo, 290 U.S. 499, 54 S.Ct. 263, 78 L.Ed. 462; Lynch v. New York, New Haven & Hartford Railroad Co. (Mass.) 200 N.E. 877. The statutory words quoted have ‘ the effect of abolishing in this class of cases the common-law rule that exempted the employer from responsibility for the negligence of a fellow employee of the plaintiff.’ Seaboard Air Line Railway v. Horton, 233 U.S. 492, 501, 34 S.Ct. 635, 639, 58 L.Ed. 1062, L.R.A.1915C, 1, Ann.Cas.1915B, 475.
The act provides that ‘ contributory negligence shall not bar a recovery’ (Central Vermont Railway Co. v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433), but with an exception immaterial to this case that ‘ the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.’ Act of April 22, 1908, c. 149, § 3, 35 U.S.Stat. at Large, 66, U.S.C. title 45, § 53 (45 U.S.C.A. § 53). Seaboard Air Line Railway v. Tilghman, 237 U.S. 499, 35 S.Ct. 653, 59 L.Ed. 1069; Rocco v. Lehigh Valley Railroad Co., 288 U.S. 275, 280, 53 S.Ct. 343, 77 L.Ed. 743. But assumption of risk, where there has been no contributory violation by the carrier of any statute for the safety of employees, is a complete defence, even where negligence on the part of the defendant is found. Act of April 22, 1908, c. 149, § 4, 35 U.S.Stat. at Large, 66, U.S.C. title 45, § 54 (45 U.S.C.A. § 54). Seaboard Air Line Railway v. Horton, 233 U.S. 492, 503, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A.1915C, 1, Ann.Cas.1915B, 475; Missouri Pacific Railroad Co. v. David, 284 U.S. 460, 462, 52 S.Ct. 242, 76 L.Ed. 399. This difference in treatment of contributory negligence and assumption of risk requires, in cases under the Federal Employers' Liability Act, careful discrimination between the two doctrines.
There is no relation between contributory negligence and what has often loosely been called the contractual assumption of risk. That expression denotes the rule of law that an employer owes no duty to an employee to change the equipment, methods of operation and other conditions which obviously existed and were apparently contemplated by the parties when the contract of service was made, even though they were fraught with danger that might be avoided by the adoption of improved equipment or methods. Where, as in the Federal Employers' Liability Act, the fellow servant rule is abolished, there is no contractual assumption of the risk of negligence of a fellow servant, any more than of the master himself. O'Maley v. South Boston Gas Light Co., 158 Mass. 135, 32 N.E. 1119,47 L.R.A. 161; Gleason v. Smith, 172 Mass. 50, 52, 51 N.E. 460; Murphy v. City Coal Co., 172 Mass. 324, 327, 52 N.E. 503; McCafferty v. Lewando's French Dyeing & Cleansing Co., 194 Mass. 412, 80 N.E. 460,120 Am.St.Rep. 562; Sylvain v. Boston & Maine Railroad, 280 Mass. 503, 182 N.E. 835; Demaris v. Van Leeuwen, 283 Mass. 169, 186 N.E. 69; Cronan v. Armitage, 285 Mass. 520, 526, 527, 190 N.E. 12; Beggelman v. Romanow, 288 Mass. 14, 192 N.E. 159; Tardiff v. Lynn Sand & Stone Co., 288 Mass. 472, 193 N.E. 55. To find in section 4 of the Federal Employers' Liability Act (45 U.S.C.A. § 54) an express preservation of the so-called contractual assumption of risk is to impute tautology to the act, for that doctrine is sufficiently preserved by the requirement of proof of negligence on the part of the defendant carrier or its ‘ officers, agents, or employees.’
More difficult to ascertain is the relation between contributory negligence and what is called the voluntary assumption of risk. The latter has not always been confined to cases of master and servant, nor to cases where a contract exists between the parties. Wood v. Locke, 147 Mass. 604 18 N.E. 578; Miner v. Connecticut River Railroad Co., 153 Mass. 398, 402, 403, 26 N.E. 994; Scanlon v. Wedger, 156 Mass. 462, 31 N.E. 642,16 L.R.A. 395; Frost v. Josselyn, 180 Mass. 389, 62 N.E. 469; Tompkins v. Boston El. R. Co., 201 Mass. 114, 87 N.E. 488; McCumber v. Boston El. R. Co., 207 Mass. 559, 562, 93 N.E. 698; Bergeron v. Forest, 233 Mass. 392, 402, 124 N.E. 74; Loffey v. Mullen, 275 Mass. 277, 175 N.E. 736; Lefeave v. Ascher, 292 Mass. 336, 198 N.E. 251; Curley v. Mahan, 288 Mass. 369, 374, 193 N.E. 34; O'Meara v. Adams, 283 Mass. 396, 402, 185 N.E. 35. But as applied to a servant, the doctrine is that a servant, acting under no compulsion or necessity and having no superiority or right, recognized by the law, who voluntarily continues to work under dangerous conditions (even though they were not contemplated by the contract of employment but arose afterwards, and even though the maintenance of them would normally be a breach of the master's duty), with full knowledge and appreciation of the danger, cannot recover for personal injury resulting from those conditions. It is immaterial whether the danger be great or small, or whether want of reasonable care on the part of the master or servant be clear or debatable. Upon analysis of a particular case in which an employee voluntarily assumed the risk, it might be found that he was guilty of contributory negligence; or that ‘ the voluntary conduct of the plaintiff in exposing himself to a known and appreciated risk is the interposition of an act which, as between the parties, makes the defendant's act, in its aspect as negligent, no longer the proximate cause of the injury’ (Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 159, 29 N.E. 464, 465, 31 Ma.St.Rep. 537); or that the degree of danger was insufficient to constitute a breach of duty to any employee; or that-and this is commonly the decisive point-either because of the maxim Volenti non fit injuria alone (Miner v. Connecticut River Railroad Co., 153 Mass. 398, 402, 403, 26 N.E. 994; Schlemmer v. Buffalo, Rochester & P. R. Co., 205 U.S. 1, 12, 27 S.Ct. 407, 51 L.Ed. 681; Central Vermont Railway Co. v. Bethune (C.C.A.) 206 F. 868, 875; Rase v....
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