S.E. Rand Transp. Co. v. Boston & M.R.R.

• Citation: 273 Mass. 327,173 N.E. 547
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 28 November 1930
• Parties: S. E. RAND TRANSP. CO. v. BOSTON & M. R. R.

273 Mass. 327

173 N.E. 547

S. E. RAND TRANSP. CO.

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Essex.

Nov. 28, 1930.

Exceptions from Superior Court, Essex County; F. T. Hammond, Judge.

Action by the S. E. Rand Transportation Company against the Boston & Maine Railroad. The trial judge refused to grant defendant's motion for directed verdict, the jury returned a verdict for plaintiff, and defendant brings exceptions.

Exceptions sustained, and judgment entered for defendant.

L. J. MacNab, of Boston, for plaintiff.

A. W. Rockwood, of Boston, for defendant.

PIERCE, J.

This is an action of tort to recover for damages to the plaintiff's automobile truck and the load of merchandise thereon. The accident occurred on December 6, 1926, at about 7:25 p. m., as the result of a collision between the truck and a Boston bound train consisting of a locomotive, two passenger coaches, a combination car containing both a smoking and a baggage compartment, and a baggage car, while the truck was stalled on a grade crossing of the tracks of the defendant over the Newburyport Turnpike in the town of Newbury.

At the close of the evidence the defendant filed a motion that a verdict be directed in its favor (a) upon the first count of the declaration and (b) upon the second count of the declaration. During the course of the argument of the defendant in support of its motion the trial judge ruled, without objection or exception by the plaintiff, that there was no evidence of negligence on the part of the defendant's engineer who was operating the locomotive. The defendant's counsel then contended that there was no evidence of negligence on the part of the defendant's crossing tender or gateman, and that, even assuming but not admitting there was such negligence, it would not support the case set out by the plaintiff's declaration for the reason that the negligence there alleged consisted in negligent operation of the train and not negligence of the crossing tender or gateman. The judge refused to grant the motion for a directed verdict and the defendant duly excepted.

After the denial of the defendant's motion it made, and the judge subject to the defendant's exception refused to grant, the following requests for rulings of law: ‘6. There is no evidence to warrant the jury in finding that any agent or employee of the defendant was negligent. 7. There is no evidence to warrant the jury in finding that the crossing tender was negligent. 12. It cannot be claimed that the gate-tender was negligent in not going a greater distance up the track to flag the train, for it was his duty to remain at the crossing.’ The defendant also duly excepted to that part of the judge's charge in which he permitted the jury to find negligence on the part of the defendant's crossing tender or gateman. The only question as to the defendant's liability which was submitted to the jury was whether or not the defendant's crossing tender or gateman was negligent. There is nothing in the record other than the answer of the defendant to indicate that an issue of the plaintiff's contributory negligence was submitted to the court or jury. The jury returned a verdict for the plaintiff on both counts.

The facts shown by the bill of exceptions which are material upon the question of law raised by the defendant's motion for a directed verdict and upon its requests for rulings of law are in substance as follows: On December 6, 1926, at about 5 p. m., an employee of the plaintiff left Boston to drive...