Hughes v. Gaston

• Decision Date: 31 December 1932
• Parties: HUGHES v. GASTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

281 Mass. 292

183 N.E. 752

HUGHES

v.GASTON et al.

Supreme Judicial Court of Massachusetts, Hampden.

Dec. 31, 1932.

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

Action by Frank N. Hughes, as administrator of a decedent's estate, against George A. Gaston and others, receivers of the Central Vermont Railroad Company. An amendment of the declaration was allowed and defendants' motion for a directed verdict and request for an instruction denied, and defendants bring exceptions.

Exceptions sustained, and judgment rendered for defendants.J. E. Kerigan, of Springfield, for plaintiff,

G. F. Leary and G. D. Cummings, both of Springfield, for defendants.

WAIT, J.

The plaintiff's intestate while in the employ of the Central Vermont Railroad Company as a section hand was injured on June 4, 1928, so that on the same day he died. The administrator brought suit against the receivers of the company by writ dated November 4, 1929. The first count of the declaration alleged negligence of an engineer in charge of a train upon the railroad in failing to warn of its approach. The second count alleged negligence of the person in the service of the corporation intrusted with and exercising superintendence over the deceased and whose sole or principal duty was superintendence. Both counts alleged that an action had accrued to the plaintiff, as administrator, to recover damages, and that he claimed ‘damages, as administrator aforesaid, under the laws and statutes of the Commonwealth of Massachusetts.’ Nothing was set out of the circumstances of the accident. Apart from the allegation that the corporation ‘owned and operated a railroad between certain points, including Monson, in the State of Massachusetts and St. Albans, in the State of Vermont,’ nothing in the declaration suggested interestate transportation.

At the opening of the trial, on October 20, 1931, the plaintiff against the defendants' exception was allowed to substitute an amended declaration which alleged, in addition to the original allegations, that the intestate was injured ‘while engaged in aiding interstate commerce,’ and that the engineer ‘had charge of a train upon said railroad proceeding from New London, Conn. to White River Junction, Vt.’; and which omitted the allegation of claim ‘under the Laws and Statutes of the Commonwealth of Massachusetts.’

There was evidence as follows: The intestate, one of a section gang of five men under one Tony Galasso as foreman, had been at work putting in ties, laying rails, etc., in raising the track of the main line of the railroad between New London, Connecticut, and Palmer, Massachusetts. They had stopped this work for the day and were propelling a hand car, south, over the single track toward Monson, expecting to meet a north-bound train somewhere on their way. On a down grade some hundreds of feet north from a curve to the southeast, by the foreman's orders, they stopped the car and listened for any coming train. They heard no sound and started ahead, all the men pumping at the windlass of the hand car, the intestate and all but one facing south. Before they had gone far the train was seen on the curve approaching at from forty to forty-five miles per hour. The foreman at once ordered the crew to jump. They jumped; and then moved to seize the hand car, but the foreman ordered them to stand back before it had been lifted from the rails. All stood back in various positions. The engine, which had not slackened speed, struck the hand car, smashed it, and drove a piece against the intestate hurling him down. He died shortly after. There was evidence that he was over sixty years of age, never married, at times out of work, earning when employed $20 per week, living with a brother's family, turning in his pay envelope to the brother's wife and getting from her, on request, what he needed for personal expenditures. It could be found that the brother helped him when work failed him.

The first count was waived at the close of the evidence. The trial judge denied the defendants' motion to direct a verdict in their favor; and refused to instruct the jury that ‘The plaintiff has failed to prove by competent evidence the amount of pecuniary loss...