Lynch v. New York, N.H.&H.R.R.

• Citation: 200 N.E. 877,294 Mass. 152
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Decision Date: 01 April 1936
• Parties: LYNCH v. NEW YORK, N. H. & H. R. R.

294 Mass. 152

200 N.E. 877

LYNCH

v.NEW YORK, N. H. & H. R. R.

Supreme Judicial Court of Massachusetts, Worcester.

April 1, 1936.

Exceptions from Superior Court, Worcester County; Whiting, Judge.

Action of tort by Bridget A. Lynch, administratrix of the estate of Thomas Lynch, deceased, against the New York, New Haven & Hartford Railroad. Defendant excepted to the allowance of plaintiff's substitute declaration, and plaintiff excepted to entry of verdict in favor of defendant after a jury had returned a verdict for plaintiff.

Plaintiff's exceptions overruled, and defendant's exceptions dismissed.

R. W. Lewis, of Worcester (H. H. Hartwell, of Worcester, with him) for plaintiff.

Joseph Wentworth, of Boston, for defendant.

CROSBY, Justice.

This is an action of tort brought by the plaintiff to recover for the conscious suffering and death of her late husband, Thomas Lynch (hereinafter referred to as Lynch), while he was in the employ of the defendant. The action was brought under the Federal Employers' Liability Act (35 U.S.Stat. at Large 65, c. 149, § 1 et seq., U.S.C. title 45, §§ 51-59 [45 U.S.C.A. §§ 51-59]) against the defendant, and was tried on a substitute declaration. The defendant's exceptions relate solely to the allowance of the plaintiff's substitute declaration.

The jury returned a verdict for the plaintiff in the sum of $5,000 on the count for death, and $500 on the count for conscious suffering. The verdict was entered by the judge subject to leave reserved under G.L.(Ter.Ed.) c. 231, § 120. Thereafter the defendant filed a motion for a verdict in its favor, which was argued, and a verdict for the defendant was entered accordingly. To the allowance of the motion and to the entry of the verdict, the plaintiff excepted. It was agreed by counsel at the trial that the plaintiff was the duly qualified administratrix of the estate of the deceased, and that the deceased, at the time of the derailment which resulted in his death, was employed by the defendant in work constituting interstate commerce.

There was evidence as follows: On the day of the accident Lynch was about fifty-three and one half years of age. He was a strong, healthy man, and his wife and four of his children were dependent upon him for support. He had been employed by the defendant for thirty-one years preceding his death, and had been its section foreman for the past twenty-eight years. He was foreman of the section from North Webster in this commonwealth to Grosvenordale,Connecticut, which included six miles of a single track. Lynch was regarded by his superior officers as a faithful employee. On July 11, 1930, the morning of the accident,as section foreman he took four men with him from Webster to go to Grosvenordale, to change a cracked rail. They were as follows: Frank Pecherina, a track walker, Thomas R. O'Brien, Harold Chandler, and a man named Kalwarczyk, who was called Smitty. To make the trip they used a small motor car operated with a gasoline engine, and a clutch, the same as an automobile, and a foot brake. There was evidence that this motor car was purchased by the defendant in April, 1930, about three months before the accident.

O'Brien described the car as follows: ‘We had sheet metal come out in front, there was a bar which ran lengthwise which we sometimes used to hang onto. Up in front on both sides where the tools went was a piece of sheet metal stuck up there. It sort of worked up higher than the boards at the front of the tool boxes as shown in the picture, on the same principle but it was higher up. * * * The car had a lever something like that shown in Exhibit A for Identification and there was a foot brake and a throttle. It did not have a seat like that in the picture. It had an automobile seat with a back to it. * * * The tool boxes on our car had braces on the side. It had flanged wheels.’ This witness further testified that in his opinion the car weighed eight hundred or nine hundred pounds; that it could be lifted on a turntable and run on and off the track whenever they stopped for work; that the driver's seat was on the left side where the lever was for operating the car; that in the car that morning there were rail tongs and other articles including four shovels and two picks; that on the way they picked up two iron lining bars about five feet long and used for straightening rails, lining the track, and putting in ties; that they had with them a turntable and a telephone; that the tools were such as they usually carried when they went to change a rail; that when they left the station at North Webster Lynch was operating the car, facing the front, Smitty was sitting on the left side behind Lynch, and the witness was sitting on the right side facing toward the French river, which is shown by a picture annexed to the plaintiff's substitute bill of exceptions and was parallel with the railroad track; that in front of him on that side was Chandler, and the other man in front was Pecherina, who was killed, and who made it a rule to look over the track as he went along as a lookout; that they came to a curve, and passed around it, and it seemed ‘as though the car vibrated and shook, and we dropped and came on an angle this way, the motor car going in the river, and I went in. Mr. Lynch on this side of the track, and Mr. Pecherina was over here.’ This witness further testified that the car shook up and down; that it started to shake as they got around the curve for about six rail lengths, or one hundred and eighty feet, before it left the track, and after it left the track it traveled about a rail length, and went into the river; that two months before the accident happened an angle bar fell off the back of the car; that at the time of the accident the car was traveling about twenty miles an hour, and that was about the normal speed; that he had never known the car to shake as it did on the day of the accident; that Lynch was thrown onto the left rail of the track; that Pecherina's body was near a culvert; that he (O'Brien) went into the river past Pecherina; that he saw nothing on the track before the accident. This witness testified on cross-examination that Lynch was his foreman, and attended to the motor car, and had full charge of it; that he always operated it, saw that it was properly oiled, and decided when it was to be used; that the first time he noticed anything wrong on the day of the accident was after they came out of the first curve in the track; that there were three curves; that after the car left the track it went the length of five or six rails before it went into the river, ‘It seemed as though it trembled, and then leap, and then drop in between the rails'; that it went along the middle of the track and into the river, ‘One wheel inside and the other wheel outside. * * * Two outside and two inside’; that before the witness felt the car drop he heard Lynch ask what happened; that the motor car seemed to be in good condition until this accident occurred; that he saw Lynch put his foot on the brake, but he was thrown off before he had any time to apply it; that between Wilkinsonville and the time he felt the car drop Lynch did not need to put on the brake, he operated the car in an easy and the usual manner.

Stanley Kalwarczyk, called by the plaintiff, testified that at the time of the accident he had been working for the defendant about twenty years and was so working at the time of the accident; that he and the other members of Lynch's section gang put the tools on the side of the car in the usual place; that after leaving Wilkinsonville ‘we went about two and one-half miles ‘until we got that shake,” (the witness then shook his hands side-ways and then up and down); that after the car left the rails it went off the bank into the water; that he (the witness) fell on top of Lynch; that no tools fell out of the car before it started to shake; that he saw nothing on the track at any time before the accident. On cross-examination this witness testified that the car was loaded at Webster, and two lining bars were picked up at Wilkinsonville and were put on the sides of the car; that ‘A lining bar is a rail bar about 5 or 6 feet long and about 3 inches around.’ This witness further testified that the motor car worked all right up to the time of the accident.

Harold W. Chandler, called by the defendant, testified in part that on the day of the accident he was a member of Lynch's section gang; that the motor car involved in the accident came in April, 1930; that it was started with a crank and had a friction clutch; that it was used on the section right along; that it worked perfectly so far as he could see; that he never heard Lynch complain about it; that Lynch wanted a seat for it, and a seat came but the witness did not know who put it on; that Lynch supervised the care of this car; that Lynch had him oil it and see that the spark plugs were clean, and he did the cranking and all that was done was under the supervision of Lynch who had full control of the car. This witness further testifiedthat the work to be done the day of the accident was first to change a rail at North Grosvenordale, and then level the track the rest of the day; that after the car was loaded Lynch took the driver's seat and he (the witness) cranked it. This witness, after describing the place on the car where the tools were put and the position of the men, testified as follows: At Wilkinsonville they stopped and picked up two lining bars which were placed on the right-hand side of the car. The first he felt that anything was wrong was that ‘The motor kind of slowed up, kind of quick and then there was a kind of shimmy, then the car flopped over, as near as I can tell. This happened * * * about 2 rails; 2 1/2 rails in length.’ The witness landed on the roadbed beside the ties on his hands and knees. He saw Lynch lying on the track. About three weeks after the accident he saw a few marks on the ties; the...