Tanona v. New York, N.H.&H.R.R.
| Decision Date | 21 December 1938 |
| Citation | 18 N.E.2d 163,301 Mass. 589 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | TANONA v. NEW YORK, N. H. & H. R. R. |
OPINION TEXT STARTS HERE
Report from Superior Court, Worcester County; O'Connell, Judge.
Action by Walery Tanona against the New York, New Haven & Hartford Railroad to recover for injuries, wherein defendant's motion for a directed verdict was granted. On report to the Supreme Judicial Court in accordance with stipulation of the parties.
Judgment for defendant.
E. Burke, of Worcester, for plaintiff.
J. J. Whittlesey, of Boston, for defendant.
The plaintiff, an employee of the defendant, seeks in this action to recover for injuries sustained by falling into a hole, located in the defendant's railroad yard. He was hired upon the morning of the accident and was one of a group of thirty to forty men engaged in shoveling snow and cleaning switches. A foreman directed the plaintiff where to work. He began work removing snow from a track located in yard 9, and cleaning the switches connected with that track. There was a passageway located at the side of this track. The plaintiff had cleaned about half a dozen switches and was proceeding along the passageway in the course of his work, when his left leg up to his knee went into a hole. It was snowing at the time of the accident, and there were eleven inches of snow on the ground. The hole was three feet in circumference. It was covered with snow. The plaintiff had not receive any warning and did not know of the existence of the hole until he fell. The plaintiff and another employee, who was working with him, testified that they did not see any cars upon the track or any movement of cars upon that track while they were working there. The plaintiff went to work at 7 A. M.; he was injured at 10 A. M. but continued to work until noon time. He left the defendant's premises at 2 P. M. It did not appear how long his companion worked in this yard after the accident. The defendant was not insured under the Workmen's Compensation Act. G.L.(Ter.Ed.) c. 152.
The defendant introduced evidence that yard 7 was adjacent to yard 9; that trains from all parts of the country are received in yard 7, where they are broken up, rearranged, and then depart for various points within and without the State; that cars are switched from yard 7 into yard 9; that yard 9 is also used for the classification of interstate trains; that trains and cars from outside the State come into yard 9, and that tracks lead out of this yard to Providence, Rhode Island. The defendant's records showed the location of certain cars upon certain tracks in yard 9 on the day of the accident, and some of these cars came from outside the State.
At the close of the evidence, the judge granted the defendant's motion for a directed verdict ‘upon the pleadings and upon all the law and the evidence’ and reported the case to this court in accordance with a stipulation made by the parties.
The declaration sets forth in a single count a cause of action at common law. The answer, among other things, alleged that the plaintiff's action was ‘exclusively governed by the Federal Employers' Liability Act.’ The nature and purport of a pleading are to be determined in accordance with our own law and do not involve the adjudication of a Federal question. The gist of the count is the alleged violation of a common law duty owed by an employer to an employee. The action is not based upon the Federal Employers' Liability Act. 35 U.S.Stat. 65, c. 149, 36 U.S. Stat. 291, c. 143, 45 U.S.C.A. § 51 et seq. Dewing v. New York Central Railroad Co., 281 Mass. 351, 183 N.E. 754;Saunders v. Boston & Maine Railroad, 287 Mass. 56, 191 N.E. 381;Wabash Railroad Co. v. Hayes, 234 U.S. 86, 34 S.Ct. 729, 58 L.Ed. 1226;Central Vermont Railway Co. v. White, 238 U.S. 507, 35 S.Ct. 865, 59 L.Ed. 1433, Ann.Cas.1916B, 252.
The burden was upon the plaintiff to prove his case within the pleadings and, when the Federal act had been set up in defense, to establish a right of action at common law which had not been superseded by the Act of Congress. His cause of action could not occupy both fields. If the plaintiff's injury occurred when he was engaged in interstate commerce while in the employ of an interstate common carrier by railroad, then the remedy provided by the Federal act became exclusive and no recovery could be had under the common law. St. Louis, San Francisco & Texas Railway Co. v. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129, Ann.Cas.1914C, 156;North Carolina Railroad Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591, Ann.Cas.1914C, 159;Lynch v. Boston & Maine Railroad, 227 Mass. 123, 116 N.E. 401, L.R.A.1918D, 419;Saunders v. Bston & Maine Railroad, 287 Mass. 56, 191 N.E. 381. The real issue is whether the plaintiff has shown that at the time he was injured he was not engaged in interstate commerce.
If the tracks and switches upon which the plaintiff was working were used for the reception, distribution and dispatch of trains from and to points beyond the Commonwealth, they were instrumentalities of interstate commerce, and the work in which the plaintiff was engaged at the time of his injury was incidental to or so closely connected with interstate commerce as practically to become a part of it. Pedersen v. Delaware, Lackawanna & Western Railroad Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann.Cas.1914C, 153;New York Central Railroad Co. v. Winfield, 244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045, L.R.A. 1918C, 439, Ann.Cas.1917D, 1139;New York Central Railroad Co. v. Porter, 249 U.S. 168, 39 S.Ct. 188, 63 L.Ed. 536;Kinzell v. Chicago, Milwaukee & St. Paul Railway Co., 250 U.S. 130, 39 S.Ct. 412, 63 L.Ed. 893.
The mere disbelief of the defendant's testimony that the yard was used for interstate commerce was not evidence that the contrary was true. Wakefield v. American Surety Co., 209 Mass. 173, 95 N.E. 350;Boice-Perrine Co. v. Kelley, 243 Mass. 327, 137 N.E. 731. The plaintiff's testimony was to the effect that no...
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