Vozzella v. Boston & M.R.R.
| Decision Date | 26 February 1937 |
| Citation | 296 Mass. 491,6 N.E.2d 770 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | VOZZELLA v. BOSTON & M. R. R. |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middelsex County; Burns, Judge.
Action of tort by Celestino Vozzella against the Boston & Maine Railroad. The trial judge directed a verdict for defendant, and plaintiff brings exception.
Judgment for defendant.
R. L. Sisk, of Lynn, for plaintiff.
R. W. Hall, of Boston, for defendant.
The plaintiff's declaration alleges that he was struck and injured by a piece of metal which became detached from a train of the defendant while it was passing over a grade crossing. The plaintiff, who was the only witness at the trial, testified in substance that at the time of his injury he was walking on a public highway, parallel with the tracks of the defendant railroad at a grade crossing, and outside the gates which had been lowered by the crossingtender; that, while the engine of the train was passing him, he felt pain in his ankle and looking down saw a piece of iron rolling away, and that he picked it up and gave it to the crossing tender.
The plaintiff introduced in evidence certain interrogatories which he had propounded to the defendant and the answers of the defendant thereto. In those answers the following facts appear. The persons operating the train and the crossing tender were employees of the defendant. The piece of metal which the plaintiff give to the crossing tender was ‘the head of a greasecup.’ The engine pulling the train ‘carried greasecups with heads similar to but not identical with the one handed’ to the crossing tender. The crossing tender turned it over to another employee of the defendant but the defendant was unable to locate it. There was no evidence as to the shape, size or weight of the piece of metal picked up by the plaintiff or as to the manner in which it was attachable to a greasecup.
The defendant offered no evidence except two other interrogatories propounded by the plaintiff and the answers thereto made by the defendant. To an interrogatory as to whether the piece of metal in question came from any part of the engine or train the answer was: ‘It did not.’ To an interrogatory requiring the defendant to state whether it knew where the piece of metal came from, the reply of the person answering the interrogatories on behalf of the defendant was: ‘I have no idea where the piece of metal came from.’
The trial judge directed the jury to return a verdict for the defendant, the parties stipulating that if the judge erred judgment should be entered for the plaintiff in the sum of $450 and that if there was no error judgment should be entered for the defendant.
The plaintiff alleges in his declaration and here contends that the piece of metal which struck him had been a part of and had become detached from the train as it went by him. His own testimony taken by itself does not go far enough to warrant that conclusion. Assuming that his testimony justified an inference that the piece of metal had been put in motion by the train just before it struck him, the further inference that it had been a part of the train is not warranted by the plaintiff's own testimony. It might earlier have come upon the track and have been driven against...
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