Petition dismissed; and ordered further that the clerk of the Surpeme Judicial Court for the Commonwealth send a copy of this rescript to the clerk of the Superior Court for the county of Suffolk, to be filed in each of the cases of Sauve v. Boston, Worcester & New York Street Railway Company, Wadman v. Boston, Worcester & New York Street Railway Company, Cunningham v. Boston, Worcester & New York Street Railway Company, and Cunningham v. Boston, v. Smith. This is a petition of the defendants in the cases of Sauve v. Boston, Worcester & New York Street Railway Company, Wadman v. Boston, Worcester & New York Street Railway Company, Wadman v. Boston, Worcester & New York Street Railway Company, Cunningham v. Boston, Worcester & New York Street Railway Company, and Cunningham v. Smith, tried in the Superior Court, to establish the truth of exceptions contained in the defendants' consolidated bill of exceptions which was disallowed by the trial judge on the ground that the statement in the bill that it "contains all the evidence which is material to the issue raised" was not correct and that the bill was not in conformity to the truth. The sole and comprehensive exception of the defendant in each of the cases was to the denial of a motion for a directed verdict in the defendant's favor. The petition was referred to a commissioner who has reported setting forth the material evidence adduced at the trial of the cases, and pointing out that much of certain evidence thus set forth had an important bearing on the issue of negligent maintenance of the defendant street railway company's bus, upon which the plaintiffs relied, and had been omitted from the consolidated bill of exceptions, and expressly found that the bill did not conform to the truth. An examination of the bill and the report of the commissioner satisfies us that the bill of exceptions was disallowed rightly on that ground by the judge. See Energy Electric Co., petitioner, 262 Mass. 534 , 537, and cases cited.
Judgment for the defendants. The plaintiff was injured while employed as a laborer on the defendants' tracks. The plaintiff at the time of the injury was, as he concedes, engaged in interstate commerce. In these circumstances his only remedy was under the Federal employer's liability act (U. S. C. [1940 ed.] Title 45, Sections 51-60). Dewing v. New York Central Railroad, 281 Mass. 351 , 353. The plaintiff's declaration, however, sets forth in a single count a cause of action at common
law. The defendants' answer, among other things, alleges that the plaintiff's right of action was exclusively governed by the Federal employer's liability act. At the close of the plaintiff's evidence the judge granted the defendants' motion for a directed verdict "upon the pleadings and upon all the law and the evidence," and reported the case under a stipulation that if the verdict was wrongly directed judgment was to be entered for the plaintiff for $2,000. The burden was upon the plaintiff under the pleadings to establish his right of action at common law (Tanona v. New York, New Haven & Hartford Railroad, 301 Mass. 589 , 591), but he failed to do this and the judge rightly directed a verdict for the defendants.