Sack v. Director Gen. of Railroads.

• Decision Date: 23 May 1923
• Citation: 245 Mass. 114
• Parties: LEON SACK v. DIRECTOR GENERAL OF RAILROADS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

245 Mass. 114

LEON SACK v. DIRECTOR GENERAL OF RAILROADS.

Supreme Judicial Court of Massachusetts, Norfolk.

May 23, 1923

October 17, 18 December 20, 1922.

Present: RUGG, C.

J., BRALEY, PIERCE & CARROLL, JJ.

Federal Control of Railroad. Practice, Civil, Amendment. Negligence, Railroad crowd at station. In an action, originally brought on March 22, 1919, against "Walker D.

Hines, as he is Director General of the United States Railroad Administration; and New York, New Haven and Hartford Railroad Company," wherein a motion to amend the writ had been allowed on June 17, 1921, substituting as defendant "James C. Davis, Director General of Railroads and as agent under the Transportation Act of 1920," the Superior Court had jurisdiction after a trial and verdict in the Superior Court and before judgment to allow a further motion by the plaintiff that his previous motion to amend "be filed and allowed as of May 2, 1921, instead of as of June 17, 1921, as now appears of record."

An action of tort for personal injuries cannot be maintained against the operator of a railroad by one who, when be was at a station and intending to board an approaching train on a Saturday afternoon, was pushed by a crowd, in spite of his resistence against one of the cars, fell beneath it and was injured, although it appears that the regular assembling for a considerable time before the date of the accident of the crowd at that time on Saturdays, due to the workmen leaving nearby factories for the week end holiday, had been known to the defendant for some time, if the evidence falls short of showing that the conduct of the crowds on occasions previous to the accident to the plaintiff had displayed turbulence, roughness, disorder or disregard for the safety of others.

A finding of conduct on the part of such crowds displaying turbulence, roughness, disorder or disregard for the safety of others was not warranted where the evidence tended merely to show the congregation of large crowds on the occasions previous to the plaintiff's injury, "that as a train would come in they would get up and . . . they would rush to get upon the train;" that "they made a `swash ' for the train and if you weren't a good man, or strong, you would have to wait for the next train . . . the police officer could not stop the" crowd; that "one police officer would have no use at all for that crowd coming there; . . . that, as the train came into the station, some people would rush across ahead of the engine;" and that a police officer and a baggagemaster stationed there vainly attempted to keep the crowds from crossing the tracks to the side farther from the station to board the train from that side.

TORT for personal injuries received on June 29, 1918, by reason of the conduct of a crowd of prospective passengers when the plaintiff was at the station of the New York, New Haven and Hartford Railroad (then under federal control) at Quincy and was about to board a train. Writ dated March 22, 1919.

In the Superior Court, the action was tried before King, J. Material evidence is described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered in his favor. The motion was denied. The jury found for the plaintiff in the sum of $20,000; and the defendant alleged exceptions.

Proceedings relating to the remanding of the action to the Superior Court and the amendment of the writ as to the defendant, nunc pro tunc, and the defendant's exceptions thereto are described in the opinion.

42 U.S. Sts. at Large, 1443, approved March 3, 1923, reads as follows: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 206 of the Transportation Act, 1920, is amended by adding at the end thereof two new subdivisions to read as follows:

"(h) Actions, suits, proceedings, and reparation claims, of the character described in subdivision (a), (c), or (d), properly commenced within the period of limitation prescribed, and pending at the time this subdivision takes effect, shall not abate by reason of the death, expiration of term of office, retirement, resignation, or removal from office of the Director General of Railroads or the agent designated under subdivision (a), but may (despite the provisions of the Act entitled `An Act to prevent the abatement of certain actions,' approved February 8, 1899), be prosecuted to final judgment, decree, or award, substituting at any time before satisfaction of such final judgment, decree, or award the agent designated by the President then in office. Nor shall any action, suit, or other proceeding heretofore or hereafter brought by any public officer or official, in his official capacity, to enforce or compel the performance of an obligation due or accruing to the United States arising out of Federal control, abate by reason of the death, resignation, retirement, or removal from office of such officer or official, but such action, suit, or other proceeding may (despite the provisions of such Act of February 8, 1899), be prosecuted to final judgment, decree, or award, substituting at any time before satisfaction of any such final judgment, decree, or award the successor in office.

"(i) Orders providing for a substitution in such cases made before this subdivision takes effect by courts having jurisdiction of the parties and subject matter are hereby validated, anything in such Act of February 8, 1899, to the contrary notwithstanding. Actions, suits, reparation claims, or other proceedings of the character described in subdivision (h) which have been abated or dismissed solely because of the provisions of such Act of February 8, 1899, shall be reinstated upon reasonable notice to the adverse party, and upon proper motion therefor filed within one year from the time this subdivision takes effect."

M. G. Gonterman, (H.

Lawlor with him,) for the defendant.

F. W. Mansfield, for the plaintiff. Lee M. Friedman & L. B. King, were permitted to file a brief 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 and Hartford Railroad in attempting to board a train for Boston at the station in Quincy in this Commonwealth at a little after two 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, Section 9; 40 U.S. Sts. at Large, 456. The action originally was brought against "Walker D. Hines, as he is Director General of the United States Railroad Administration; and New York, New Haven and 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. Sts. at Large, 1922, 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. Sts. at Large, 461, Section 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. Sts. at Large, 1793, 1794; that on March 26, 1921, James C. Davis was designated as agent to succeed John Barton Payne, see Sts. of U.S. passed at First Session of 67th Congress, Proclamations, page 5, and that by Act of Congress of February 8, 1899, c. 121, 30 U.S. Sts. at Large, 822, 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. Payne v. Industrial Board of Illinois, 258 U.S. 613. 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, 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 . G.L.c. 235, Section 4. Genga v. Director General of Railroads, 243 Mass. 101 . Aetna Mills v. Director General of Railroads, 242 Mass. 255.

Whatever doubt might...