Shipp v. Boston & M.R.R.

• Decision Date: 30 June 1933
• Citation: 283 Mass. 266,186 N.E. 653
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: SHIPP v. BOSTON & M. R. R.

283 Mass. 266

186 N.E. 653

SHIPP

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Middlesex.

June 30, 1933.

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

Action by Minnie W. Shipp, as administratrix of the estate of James Harvey Shipp, deceased, against the Boston & Maine Railroad. Verdict for plaintiff, and defendant brings exceptions.

Exceptions sustained, and judgment rendered for defendant.

F. Juggins and G. Alpert, both of Boston, for plaintiff.

J. M. Maloney, of Boston, and M. J. Cohen, of Lowell, for defendant.

FIELD, Justice.

This action of tort was brought by the administratrix of the estate of James Harvey Shipp, to recover damages for his death. Other counts in the declaration were waived and the case was tried on a count under the Federal Employers' Liability Act of April 22, 1908, c. 149, § 1, 35 U. S. Stat., part 1, p. 65 (45 USCA § 51), alleging that ‘the plaintiff's intestate was seriously injured by reason of defects or insufficiencies, due to the defendant's negligence in its appliances, machinery, works, and equipment, which caused in whole or in part the death of the plaintiff's intestate.’ The defendant's motion for a directed verdict was denied and there was a verdict for the plaintiff. The defendant's exceptions to the denial of its motion, the refusal to rule as requested, parts of the charge and the admission of evidence bring the case before us.

Section 1 of the Federal Employers' Liability Act provides that a common carrier by railroad while engaged in interstate commerce ‘shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee * * * for such injury or death resulting 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 cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.’

It is undisputed that on June 6, 1927, the plaintiff's intestate was employed by the defendant, that the defendant was a common carrier by railroad engaged in interstate commerce, that the deceased was injured while engaged in such commerce, that he died on December 3, 1927, being survived by the plaintiff, his widow, and a minor son, George M. Shipp, that the widow was duly appointed administratrix of her husband's estate, and that she and the minor son were entirely dependent upon the deceased. There was evidence that his death resulted from the injury.

The deceased was a ‘gang foreman’ in charge of repair work on signals on the Salem division of the defendant's railroad. On the day he was injured he, with four other men, was engaged in straightening a signal. The signal, which extended about thirty feet above the ground, consisted of a cement base, weighing about six thousand pounds, set in the ground about four and one-half feet, a box on top of the base about eight feet high, containing the machinery operating the signal, and a pole or mast fastened to the box and extending upward therefrom about twenty-two feet. The box and mast weighed about fifteen hundred pounds.

The men dug around the base of the signal. A rope was then put around the mast near the cop of the box. A pulley block with a hook at one end was attached to the rope by the hook, and another pulley block was attached to a rope around one of the rails in a similar manner. A rope running through the blocks was fastened at one end to a rail and three of the men including the deceased, at his direction, pulled on the other end of the rope. Whenever they ceased to pull a fourth man would ‘snub’ the rope around another rail to hold what had been gained. The fifth man stood on the box with a level to see when the pole became plumb. On the third or fourth pull the hook which attached the block to the rope around the mast gave way or straightened and the block, being thus released, snapped back and struck the deceased on the head, injuring him.

Upon a motion for specifications or statement of particulars (G. L. [Ter. Ed.] c. 231, § 70) the plaintiff specified that the negligence of the defendant, its agents, servants or employees consisted ‘In furnishing defective paraphernalia for plumbing the signals, which resulted in the hook bending or giving away under strain,’ that the alleged defect or insufficiency in the defendant's appliances, machinery, works and equipment was that ‘The hook was not strong enough for the contemplated work and was defective in that the materials and method used in its construction were not proper,’ and that the alleged defect, insufficiency or negligence of the defendant, its agents, servants, or employees was that ‘The defect was inherent in the hook, which was a part of the pulley, and the insufficiency was the failure to supply a hook adequate to do the work contemplated.’

The motion for a directed verdict was based on the following grounds: (1) ‘Because there is not sufficient evidence to justify a finding that the defendant, its agents or servants was negligent,’ (2) ‘Because there is not sufficient evidence to warrant a finding that there was any defect in the equipment of the defendant or that it was insufficient,’ (3) ‘Because on all the evidence the plaintiff's intestate assumed the risk of injury,’ (4) ‘Because on all the evidence the plaintiff's intestate's injury was caused through his sole negligence,’ and (5) ‘Because there is no pecuniary loss alleged to the plaintiff's intestate's widow and son, George, within the meaning of the law.’

This motion should have been allowed on the first and second grounds.

Apart from matters of procedure not affecting substantive rights (Lee v. Central of Georgia Railway Co., 252 U. S. 109, 110, 40 S. Ct. 254, 64 L. Ed. 482), the ‘case is governed by the act and the applicable principles of common law as established and applied in federal courts.’ Missouri Pacific Railroad Co. v. Aeby, 275 U. S. 426, 429, 48 S. Ct. 177, 179, 72 L. Ed. 351. According to these principles the defendant was not ‘held to an absolute responsibility for the reasonably safe condition of the place, tools, and appliances, but only to the duty of exercising reasonable care to that end.’ Baltimore & Ohio Southwestern Railroad Co. v. Carroll, 280 U. S. 491, 496, 50 S. Ct. 182, 183, 74 L. Ed. 566. It was liable for ‘death resulting in whole or in part from the negligence specified in the act and proof of such negligence is essential to recovery’ and the ‘kind or amount of evidence required to establish it is not subject to the control of the several states.’ Chicago, Milwaukee & St. Paul Railway Co. v. Coogan, 271 U. S. 472, 474, 46 S. Ct. 564, 565, 70 L. Ed. 1041. The rule applied in the Federal courts is that the ‘credibility of witnesses, the weight and probative value of evidence are to be determined by the jury and not by the judge. However, * * * in every case, it is the duty of the judge to direct a verdict in favor of one of the parties when the testimony and all the inferences which the jury could justifiably draw therefrom would be insufficient to support a different finding.’ Baltimore & Ohio Railroad Co. v. Groeger, 266 U. S. 521, 524, 45 S. Ct. 169, 170, 69 L. Ed. 419. But ‘that the question of the credibility of witnesses is one for the jury alone * * * does not mean that the jury is at liberty, under the guise of passing upon the credibility of a witness, to disregard his testimony, when from no reasonable point of view is it open to doubt.’ Chesapeake & Ohio Railway Co. v. Martin, 283 U. S. 209, 216, 51 S. Ct. 453, 456, 75 L. Ed. 983. See, also, Pennsylvania Railroad Co. v. Chamberlain, 288 U. S. 333, 343, 53 S. Ct. 391, 77 L. Ed. 819.

The plaintiff relies solely upon the defendant's negligence in furnishing a block with a defective hook and in failing to furnish a block with a hook sufficient for the purpose for which it was used-negligence which falls within the specifications. There was no evidence that the defendant furnished any other ‘defective paraphernalia for plumbing signals.’

According to uncontradicted evidence the appliances furnished by the defendant for use in straightening signals were kept in a box in the tool car at the Salem station which was moved only for heavy jobs and, on the occasion in question, the specific blocks to be used were taken from this box under instructions from the deceased and were carried on a gasoline motor car to the place where the signal to be straightened was located. The evidence, however, was conflicting as to whether there were any stronger blocks in the...