Renaldi v. New York Central Railroad

Braley, J. The plaintiff in the first action as administrator of the estate of Giovanni Bardelli, and in the second action as administrator of the estate of Attilio Renaldi sues to recover damages for the conscious suffering and death of each decedent alleged to have been caused by the negligence of the defendant. The declaration in each action as amended consisted of four counts, two for conscious suffering under G. L. c. 153, and two for death caused by wrongful act under G. L. c. 229. The decedents on January 11,1922, were employed by the defendant railroad company, and the jury could find that the day was stormy, with a high wind. It snowed and rained heavily, and at noon time the section foreman of the switching gang told the decedent Renaldi, “You have got to go up there and clean the switch at West Connor.” Renaldi replied, “I will not go,” because it was storming. The foreman then said, “Well, I will call another man and I( will send him with you; I will send the two of you.” And, the decedent Giovanni Bardelli having been called, they both [339] went away together, each carrying a shovel and a broom. The distance to West Connor was about three quarters of an hour’s walk. The hospital record showed that both men were admitted to the hospital at about 2:50 p.m., January 11, 1922, and died there at about 4:35 p.m. There also was evidence that the decedents were seen at work when a train came along, and then, one was thrown “to one side and one on the other.” The train which struck them was an interstate train running from Boston to Albany on the main line track, and the switch was being cleaned in connection with the running of this train. The defendant’s engineer testified, that, from something the fireman said to him just as the engine struck the curve on the main fine track and he had gone a considerable distance beyond the switch, he blew his whistle, immediately applied the brakes, stopped the train, and was told that “he had struck some men or a man at the switch.” His uncontradicted evidence tended to show that “because the boiler of his engine obstructed his view of the track” he did not see either of the men before the accident. But after the train stopped “he saw one of the men in front of the engine.” It is obvious that there was no evidence for the jury of the negligence of the defendant’s section foreman, superintendent, engineer or fireman. G. L. c. 153, § 1, Third. The defendant did not undertake to give the decedents warning of the approach of trains but each was expected to look out for himself. If the engineer failed to slow down the train, or to sound the whistle, or ring the bell, the defendant was not responsible for those omissions. Morris v. Boston & Maine Railroad, 184 Mass. 368. The verdict for the defendant on all the counts was ordered rightly. But the plaintiff before trial filed a motion on December 4,1924, to add a fifth count based on the Federal employers liability act. It was stipulated that when injured the decedents were employed in removing snow from a switch on the main line running from Boston in this Commonwealth, to Albany in the State of New York. The accident however happened January 11, 1922, the date when the cause of action in each case accrued. It is provided by § 8662 U. S. Comp. Sts., commonly known as the Federal employers [340] liability act, that “No action shall be maintained under this act unless commenced within two years from the date the cause of action accrued.” The proposed amendment was based on the ground, that the decedents were aiding interstate commerce. It introduced a new and independent cause of action which the judge correctly ruled was barred by the statute. Union Pacific Railway v. Wyler, 158 U. S. 285. Seaboard Air Line Railway v. Renn, 241 U. S. 290, 293, 294. It is unnecessary to discuss the question, whether the. provision that suit must be brought within two years is a condition on which liability rests, or operates only as a period of limitation. The order denying the motion to amend is to stand, and judgment is to be entered for the defendant on the verdicts. So ordered.