Murphy v. Boston & Maine R.R.

• Decision Date: 02 April 1946
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: MURPHY v. BOSTON & MAINE R. R.

319 Mass. 413

65 N.E.2d 923

MURPHY

v.BOSTON & MAINE R. R.

Supreme Judicial Court of Massachusetts, Middlesex.

April 2, 1946.

Exceptions from Superior Court, Middlesex County; Brogna, Judge.

Action under the Federal Employers' Liability Act, §§ 1-10, 45 U.S.C.A. §§ 51-60, by Anna J. Murphy, administratrix, against Boston and Maine Railroad, to recover for death of plaintiff's husband, Mark J. Murphy. A verdict was entered for plaintiff, and the defendant brings exceptions.

Exceptions overruled.

Before FIELD, C. J., and QUA, DOLAN, WILKINS, and SPALDING, JJ.

T. C. O'Brien, S. B. Horovitz and J. S. Stone, all of Boston, for plaintiff.

J. DeCourcy and A. M. Knowles, both of Boston, for defendant.

QUA, Justice.

The plaintiff has a verdict in this action under the Federal Employers' Liability Act, U.S.C. (1940 Ed.) Title 45, §§ 51-60, 45 U.S.C.A. §§ 51-60, for the death of her husband, Mark J. Murphy, alleged to have occurred on or about December 1, 1942. The only exception of the defendant on which the case is here is to the refusal of the judge to direct a verdict for the defendant.

It is agreed or substantially admitted that the defendant was a common carrier by railroad engaged in interstate commerce; that the deceased was an employee of the defendant; and that his employment was in interstate commerce. The question to be decided is whether there was any evidence for the jury that while he was so employed his death resulted ‘in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its * * * appliances, * * * track, roadbed, works, * * * wharves, or other equipment.’ Section 51.

There was evidence tending to show these facts: The deceased was a locomotive fireman who ‘held over twenty years' seniority.’ He was ‘a very devoted and good husband.’ On December 1, 1942, his work was on a ‘passenger switcher’ which was making and breaking up passenger trains at the North Station in Boston. He had worked many times upon the switcher, doing work of a routine character which was substantially the same each night. He started for work in his automobile at about 1:30 o'clock that afternoon. He appeared normal and healthy. At five or ten minutes past seven in the evening he left his engine to get something to eat and started off along the platform toward the station gates. The engineer had told him that on his return the engine would be on ‘track A.’ The engine generally went to ‘track A’ at about that time for a supper period. ‘Track A’ began between two high loading platforms near that which was called at the trial the southerly side of the station, but which we suspect would be more accurately described as the easterly or northeasterly side. Proceeding away from the station in the direction of the draws over the Charles River, this track merged into another track which ran for a considerable distance along the edge of the river to the most easterly draw, known as ‘draw 1,’ and then over that draw. Between this last mentioned track and the river was a ‘catwalk’ provided for persons walking to and over the draw. The ‘catwalk’ began at a sea wall at the edge of the river near the station and ran out to ‘draw 1.’ The ‘catwalk’ was provided with a metal railing along the river, but there was no railing, fence, or guard upon the sea wall at which the ‘catwalk’ began. After the deceased left his engine at a few minutes past seven he was next heard from in a telephone call to his wife at about 7:30. They talked about ‘the children.’ He said he had finished his supper, suggested buying a Christmas present the next day, told his wife to ‘keep the pot on,’ that he would see her at eleven o'clock, and after some joking said, ‘I've got to go now; it's getting late’; ‘I've got to get back now.’ Then she said ‘goodbye.’ In the meantime the engine had backed to the platforms on ‘track A,’ where the engineer and the head brakeman ate supper on the engine. As a general rule the engine left ‘track A’ evenings at about 7:40. But on December 1, they waited as long as they could for the deceased, even after they had the signal to go out. But as the deceased did not come, they pulled out over ‘draw 1’ at about 7:50 preparatory to backing in again upon some other nearby track. There was a large reflector light on the rear of the tender, which shone back toward the station. In pulling out of ‘track A’ the engine had to pass a signal twenty-five or thirty feet from the ‘catwalk.’ It would get the next signal three feet from the draw to permit it to pass over the draw. If that signal was against it, it ‘would stop east of the drawbridge, and you would be on the track nearest the sea wall.’ That track ‘runs along beside the catwalk and the catwalk is between that track and the metal railing.’ There was no evidence whether the draw signal was against the engine that night.

There was evidence that when the deceased came back from supper it was his duty to find his engine; and that if his engine had gone from ‘track A’ he should go to the yardmaster's office, which was ‘between tracks 12 and 13 at the head of the depot near the draw,’ and find out where his engine was. It appeared that the night of December 1 was the first night of the war ‘dim out’; that the flood lights were out in an area which could be found to include the sea wall and the beginning of the ‘catwalk,’ and that there was ‘no lighting’ at a point near the beginning of the ‘catwalk.’ The night was rainy and windy.

No witness testified to seeing the deceased alive after he left the engine to go for something to eat. His automobile was found in the vicinity of the engine house the next morning. On May 13, 1943, his badly decomposed body was discovered floating in the water of the Charles between Warren Avenue bridge and Charlestown bridge some distance below the railroad draws. There was evidence that the cause of death was ‘asphyxia by drowning.’ There was evidence that the tide ebbs and flows gently in this part of the river, and very slowly on the bottom, but that there is a tendency for an object on the bottom to move gradually seaward. The bottom is muddy. The body of a person drowned in the Charles in December would remain on the bottom until spring, when warmer water would accelerate the formation of gas which would cause the body to rise.

The standard by which is measured the amount of evidence necessary to carry a case to the jury under the Federal act is, of course, that established by decisions of the Supreme Court of the United States. Brady v. Southern Railway, 320 U.S. 476, 47964 S.Ct. 232, 88 L.Ed. 239;Shipp v. Boston & Maine Railroad, 283 Mass. 266, 186 N.E. 653. Recent decisions of that court have, in general, disclosed a tendency toward scrupulous avoidance of any possible encroachment upon the sphere of the jury. Tiller v. Atlantic Coast Line Railroad, 318 U.S. 54, 67, 68, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967;Id., 323 U.S. 574, 65 S.Ct. 421;Bailey v. Central Vermont Railway, 319 U.S. 350, 353, 354, 63 S.Ct. 1062, 87 L.Ed. 1444;Tennant v. Peoria & Pekin Union Railway, 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520;Blair v. Baltimore & Ohio Railroad, 323 U.S. 600, 602, 65 S.Ct. 545;Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740. See Waddell v. Chicago & Eastern Illinois Railroad, 7 Cir., 142 F.2d 309, certiorari denied sub nomine Chicago & Eastern Illinois Railroad v. Waddell, 323 U.S. 732, 65 S.Ct. 69;Eglsaer v. Scandrett, 7 Cir., 151 F.2d 562. In the Tennant case, 321 U.S. at page 35, 64 S.Ct. at page 412, 88 L.Ed. 520, the Supreme Court said, ‘It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences.

The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the factfinding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable.' Compare our own statement of the governing rule in Smith v. First National Bank, in Westfield, 99 Mass. 605, 612,97 Am.Dec. 59, cited with many other cases in Sargent v. Massachusetts Accident Co., 307 Mass. 246, 251, 29 N.E.2d 825, or with the briefer statement in Commissioner of Corporations and Taxation v. Bullard, 313 Mass. 72, 89, 46 N.E.2d 557, 566, 146 A.L.R. 772. ‘that the fact to be established must be shown to be more probable than any contrary fact.’ Compare also Patton v. Texas & Pacific Railway Co., 179 U.S. 658, 663, 664,21 S.Ct. 175,45 L.Ed. 361, and New York Central Railroad Co., v. Ambrose, 280 U.S. 486, 490, 50 S.Ct. 198, 74 L.Ed. 562.

We have no serious trouble in finding evidence of the defendant's negligence toward employees using the ‘catwalk’ in the failure of the defendant to provide a guard of any kind for the retaining wall immediately next the beginning of the ‘catwalk’ at a place where persons approaching the walk would naturally pass. Cawman v. Pennsylvania-Reading Seashore Lines, 3 Cir., 110 F.2d 832, certiorari denied sub nomine ...