356 Mass. 722

July 10, 1969

In this action of tort for personal injuries caused by the defendant's negligence there was a verdict for the plaintiff. The defendant excepted "to that portion of the charge in which the Court made reference to a suggestion that pain and suffering might be worth a dollar an hour." Detailed quotation from the charge would not be profitable. There are two answers to the defendant's contention. (1) The wording of the exception is not a fair construction of the judge's language. (2) Additional instructions, which were not the subject of exception, completely disposed of any conceivable erroneous interpretation.

Exceptions overruled.


356 Mass. 722

October 3, 1969

In the Superior Court this proceeding, amended to constitute a bill for declaratory relief, was dismissed on motion of the defendants, the superintendent, the Commissioner of Correction, and the Chairman of the Parole Board. The petition alleges (a) that Harkey is now serving a sentence of eight to twelve years, which commenced on December 14, 1962; (b) that he was released on parole in July, 1966; (c) that he was arrested on December 3, 1966, for an offence and was returned to Walpole on December 5, 1966, by reason of the parole violation resulting from this arrest; (d) that on January 17, 1967, he was sentenced for 1966 offences to serve two concurrent three to five year sentences concurrently with his original 1962 sentence; and (e) that he has not been given credit upon his later sentences for the period from December 5, 1966, to January 17, 1967. We treat the Attorney General's anomalous motion to dismiss (see Del Grosso v. Board of Appeal of Revere, 330 Mass. 29 , 31, and cases cited) as a demurrer. The bill does not state with clarity all the facts essential to a full declaration (see Woods v. State Bd. of Parole, 351 Mass. 556 , 559-560) concerning when Harkey will become entitled to release or the status of his sentences. Although the judge has not stated in the record his reasons for dismissing the bill (see Weinstein v. Chief of Police of Fall River, 344 Mass. 314 , 317) Harkey, in any event, has not alleged facts entitling him to release. His bill attempts only to raise the issue whether he is entitled under G. L. c. 127, Section 129B, and G. L. c. 279, Section 33A, each as amended, to credit against his 1967 sentences for his confinement from December 5, 1966, to January 17, 1967. On the facts alleged, it is plain that his confinement during this period was not confinement awaiting trial but confinement under his original 1962 sentence by reason of parole violation. Needel, petitioner, 344 Mass. 260 , 261-262. Libby v. Commissioner of Correction, 353 Mass. 472 , 474-476. Nothing in Stearns, petitioner, 343 Mass. 53 , is to the contrary.

Final decree affirmed.


356 Mass. 722

October 29, 1969

A Superior Court judge denied the railroad's motion to dismiss a complaint against it for violation of G. L. c. 160, Section 151, by occupying Main Street, Ashland, with its "cars or engines for more than five minutes at one time." The railroad then admitted that its cars obstructed Main Street for more than five minutes. Another judge, sitting without a jury, found the railroad

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guilty. The bill of exceptions sets out as supporting the motion to dismiss only a somewhat incomplete affidavit of a railroad official (a) that on September 5, 1968, about 6:50 A.M. a train of 127 cars (7,700 feet in length) consumed about eleven minutes crossing Main Street on the railroad's main line between Boston and Albany; (b) that the train was en route from a marshalling yard in Framingham to points in Michigan and Illinois; (c) that, because of a speed limit of fifteen miles an hour at this crossing, trains of this length cannot traverse this crossing within five minutes; and (d) that to split trains of this length in two will cost the railroad $71,000 a year on this division of its route alone. In Commonwealth v. New York Cent. R.R. 350 Mass. 724 , 728, G. L. c. 160, Section 151, was upheld against a predecessor railroad's contention that it imposed an unconstitutional burden on interstate commerce. Although that decision was by a divided court, the case represents existing Massachusetts authority. Enforcement of Section 151 in the present instance may involve a somewhat more direct obstruction of an interstate journey than was the basis of the conviction in the earlier case. Nevertheless, no such substantial differences between the two cases, in the effect on interstate commerce of enforcing Section 151, have been sufficiently shown to bring about a different result.

Exceptions overruled.