Home LINDA SHAW & another vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

360 Mass. 856

November 1, 1971

In this action of tort the minor plaintiff seeks compensation for personal injuries and her father seeks consequential damages as a result of an accident in which she was struck by a streetcar owned by the defendant. The accident occurred at the defendant's authorized inbound stop on Huntington Avenue in Boston. The case was tried before a judge and jury; at the close of all the evidence the defendant filed a motion for directed verdicts, which was granted. The plaintiffs excepted. We think there was error. The jury could have found that the minor plaintiff was struck by the streetcar while waiting for it at the authorized stop. It could have been found that there were some twenty or twenty-five people crowded on the narrow landing, which was three feet, four inches wide, and which was made even narrower by the streetcar's overhang of one foot, nine and three-quarters inches. The jury also could have found that since the car was fully loaded with passengers the operator had no intention of stopping, that contrary to custom he gave no warning but proceeded through the area, and that he did not stop after the accident. Failure to exercise reasonable care could thus have been found, and the jury should have been allowed to pass on the issue. LaBelle v. Boston Elev. Ry. 265 Mass. 482 , 484.

Exceptions sustained.

Home JOHN C. DENTINO'S CASE.

360 Mass. 856

November 1, 1971

The reviewing board adopted and affirmed the findings and decision of the single member, it awarded compensation for partial disability for a period. From a final decree of the Superior Court in general accord with the reviewing board's decision the insurer appealed. There was no error. Evidence before the single member was sufficient to permit a finding of the requisite causal connection between the employee's accident at work and his disability. Prior to his injury on April 19, 1968, the employee had been engaged in laborious work without experiencing the type of physical difficulty from which he suffered following the accident. A doctor's report placed before the single member sufficient information to warrant his findings. Andrade v. Correia, 358 Mass. 786 , 788.

Decree affirmed.

Home ANTHONY D. MASIELLO vs. CONTRIBUTORY RETIREMENT APPEAL BOARD.

360 Mass. 856

November 10, 1971

On May 12, 1969, the clerk of the courts for Worcester

Page 857

County filed an application with the Worcester County retirement system under G. L. c. 32, Section 16 (1) (a), for the plaintiff's involuntary retirement due to superannuation. On May 28, 1969, the Worcester county retirement board, without a hearing, voted to retire the plaintiff. The plaintiff then appealed to the contributory retirement appeal board which, after a de novo hearing, affirmed the decision of the Worcester county retirement board. The plaintiff next filed with the Superior Court a bill for judicial review of the "adjudicatory proceeding" under G. L. c. 30A, Section 14. The Superior Court affirmed the decision of the contributory retirement appeal board. This case is here on appeal from that decree. G. L. c. 30A, Section 15. The plaintiff was accorded a full evidentiary hearing before the contributory retirement appeal board, and has no cause to complain of a denial of such a hearing before a lower agency. "There is no constitutional requirement that that test be made in one tribunal rather than in another, so long as there is an opportunity to be heard and for judicial review which satisfies the demands of due process, as is the case here." Yakus v. United States, 321 U.S. 414, 444. Lincoln Hotel Co. v. Assessors of Boston, 317 Mass. 505 , 509-510. Furthermore, the decision was supported by "substantial evidence," in particular the findings of a medical panel made in 1968 in connection with an application by the plaintiff for accidental disability retirement. G. L. c. 30A, Section 14 (8) (e). Finally, the fact that the plaintiff was appointed by the Justices of the Supreme Judicial Court and subject to removal by them under G. L. c. 221, Section 4, does not mean that he is not subject to the laws governing the retirement of public employees.

Decree affirmed.