Sack v. Davis

• Decision Date: 25 May 1923
• Parties: SACK v. DAVIS, Director General of Rallroads, et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

245 Mass. 114

139 N.E. 819

SACK

v.DAVIS, Director General of Rallroads, et al.

Supreme Judicial Court of Massachusetts, Norfolk.

May 25, 1923.

Exceptions from Superior Court, Norfolk County; Henry A. King, Judge.

Action of tort by Leon Sack against Walker D. Hines, as Director General of United States Railroad Administration, for personal injuries sustained by plaintiff while waiting at a railroad station, when pushed under the wheels of a train, in which James C. Davis, Director General of Railroads and as Agent under the Transportation Act of 1920, was substituted as defendant. Verdict for plaintiff for $20,000, and defendant brings exceptions. Exceptions overruled in part, and sustained in part, and judgment ordered for defendant.

Defendant requested the following rulings upon the law and the evidence:

‘(1) That the plaintiff failed to establish that he presented himself in a proper place and in a proper manner for transportation as a passenger, or that the relation of passenger and carrier existed between the plaintiff and the defendant at the time of the accident.

‘(2) That upon all the law and the evidence the plaintiff has failed to establish that he was upon the premises of the defendant at the time of the accident by invitation express or implied on the part of the defendant.

‘(3) That the plaintiff's rights as against the defendant at the time of the accident were at most the rights of a licensee.

‘(4) That at the time of the accident, the plaintiff, as a matter of law, was guilty of negligence which contributed to his injury.

‘(5) That upon the pleadings and all the law and the evidence, the plaintiff has failed to show that the defendant violated any duty which he owed to the plaintiff at the time of the accident.’

The court refused to make said rulings, and the defendant's exceptions thereto were duly saved.

The defendant further asked the court to instruct the jury as follows:

‘That, upon all the evidence, the plaintiff at the time of the accident was at most a mere licensee upon the railroad premises, to whom the defendant owed no duty other than to refrain from wilfully or wantonly exposing him to injury.’

The court refused to so instruct the jury, and the defendant's exception thereto was duly saved.

After argument of the original bill of exceptions, the case was remanded without decision, and plaintiff filed a motion to substitute James C. Davis as defendant. The motion was allowed, and defendant excepted. On the hearing of such motion, defendant requested rulings in effect that the action had abated, and that the court was without jurisdiction to entertain the motion, and excepted to the refusal of such requests.F. W. Mansfield and E. R. Mansfield, both of Boston, and J. W. Sullivan, of Lynn, for plaintiff.

Madison G. Gonterman, of Boston, for defendants.

Lee M. Friedman and Louis B. King, both of Boston (Friedman Atherton, King & Turner, of Boston), amici curiae.

RUGG, C. J.

This is an action of tort. The plaintiff alleges that he was entitled to the rights of a passenger on the transportation system known as the New York, New Haven & Hartford Railroad in attempting to board a train for Boston at the station in Quincy in this commonwealth at a little after 2 o'clock on the afternoon of Saturday, June 29, 1918, and received injury through the negligence of servants of the defendant in failing to control the crowd of people at the station, to give adequate warning of danger, and to police the station properly. The injuries occurred during the period of federal control of railroads. Federal Control Act of March 21, 1918, c. 25, § 9, 40 Stat. 456 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115 3/4i). The action originally was brought against--

‘Walker D. Hines as he is Director General of the United States Railroad Administration and

the New York, New Haven & Hartford Railroad Company.’

The writ was dated on March 22, 1919, and was entered on May 5, 1919. On June 17, 1921, a motion to amend the writ and declaration was allowed, substituting for parties originally named as defendants, ‘James C. Davis, Director General of Railroads and as Agent under the Transportation Act of 1920.’ On the same day verdict was rendered for the plaintiff.

The defendant's exceptions to the merits of the case were duly filed and allowed. Those exceptions came on to be heard before us on October 17 and 18, 1922. At that time the defendant argued that Walker D. Hines, the duly appointed Director General of Railroads when the action was brought, 40 U. S. Stat. at Large, 1922, 1923, and named as a defendant in the writ, was acting in that capacity at the termination of federal control on February 28, 1920; that he was designated as Agent under the Transportation Act of February 28, 1920, c. 91, 41 U. S. Stat. at Large, p. 461, § 206 (a), in effect March 1, 1920, and continued to act until May 18, 1920, at which time John Barton Payne was appointed Director General of Railroads and designated as Agent under the Transportation Act by proclamations of the President, 41 U. S. Stat. at Large, part 2, pp. 1793, 1794; that on March 26, 1921, James C. Davis was designated as Agent to succeed John Barton Payne, 42 U. S. Stat. at Large,-(see Sts. of U. S. passed at First Session of 67th Congress, Proclamations, p. 5); and that by act of Congress of February 8, 1899, c. 121, 30 U. S. Stat. at Large, 822 (U. S. Comp. St. § 1594), the motion to substitute James C. Davis as Agent in place of Walker D. Hines was not seasonably filed, and that the court was without jurisdiction to hear and decide the case. John Barton Payne, Agent, v. Industrial Board of Illinois, 258 U. S. 613, 42 Sup. Ct. 462,62 L. Ed. 790.

Without decision of the point this court, on motion of the plaintiff, issued on November 14, 1922, its rescript discharging those exceptions and remanding the case to the superior court for such corrections, amendments or changes as that court might see fit to make. In the superior court the plaintiff moved that the order of that court allowing his motion to substitute ‘James C. Davis as Director General of Railroads and as Agent under the transportation Act of 1920,’ as party defendant, ‘be filed and allowed as of May 2, 1921, instead of as of June 17, 1921, as now appears of record.’ That motion was heard and allowed on November 22, 1922, against exceptions of the defendant. The case is here again and has been argued on both bills of exceptions.

The allowance of the amendment nunc pro tunc substituting the new defendant was valid under our practice, which is applicable to actions of this nature against the Director General of Railroads. Perkins v. Perkins, 225 Mass. 392, 114 N. E. 713;G. L. c. 235, § 4; Genga v. Director General of Railroads, 243 Mass. 101, 137 N. E. 637; Etna Mills v. Director General of Railroads, 242 Mass. 255, 136 N. E. 380.

Whatever doubt might have existed as to the propriety of this procedure against the Director General of Railroads, and as to our jurisdiction to consider and decide this case, has been removed by an act of Congress approved on March 3, 1923, amending section 206 of the Transportation Act of 1920. That act by its express terms is applicable to pending actions. Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 8, 107 N. E. 426, Ann. Cas. 1917A, 145. The effect of that act is by plain and indubitable words to render inapplicable to this action the limitation established by act of Congress of February 8, 1899, 30 U. S. Stat. at Large, 822, and to permit the maintenance of this action in its present form at this time. Counsel for the defendant raises no question as to the applicability of that act to the substitution which has been made in this action.

During the period of federal control of railroads, complete possession by the United States replaced private ownership, and entire responsibility for torts arising out of railroad operation rested exclusively upon the government. It is within the province of the United States as proprietor for the time being of railroads to establish by Congress the terms, conditions and limitations upon which actions relating to railroad management may be maintained against it, and as against itself to extend, waive or modify the same, Keegan v. Director General of Railroads, 243 Mass. 96, 137 N. E. 341;Genga v. Director General of Railroads, 243 Mass. 101, 137 N. E. 637, and cases collected in each opinion. The authority of the sovereign power to enact such a statute with respect to itself cannot be doubted. The legislative department of government ‘is not forbidden to be just in some cases where it is not required by the paramount law.’ Earle v. Commonwealth, 180 Mass. 579, 583, 63 N. E. 10,57 L. R. A. 292, 91 Am. St. Rep. 326;Brackett v. Commonwealth, 223 Mass. 119, 123, 111 N. E. 1036, Ann. Cas. 1918B, 863. It follows that the court has jurisdiction over the cause and the parties.

The plaintiff's case on its merits rests wholly on the contention that there was a failure of duty on the part of the defendant in not policing and controlling the crowd of people at the Quincy station at the time of his injury.

[5] The evidence in its aspect most favorable to the plaintiff, disregarding those parts which tend to exonerate the defendant, is that the plaintiff was an employee at the Fore River shipbuilding works during the late war; that there was a great increase in the number of persons there employed within a year prior to the date of the plaintiff's injury, and a consequent increase in the passenger traffic on the railroad between Quincy and Boston; that on Saturdays between noon and 7 minutes past 3 o'clock in the afternoon, for a...