McLaughlin v. Old Colony Railroad , 166 Mass. 260 ( 1896 )

Morton, J.

This -was an action of tort, to recover of the defendant for injuries received in falling, on the Roxbury crossing of the defendant’s railroad, on ice which was caused, it is alleged, by water negligently and carelessly allowed by the defendant to fall from its engine and cars while passing over the crossing, and negligently allowed by it to remain there and freeze. The action was originally brought against the defendant and the city of Boston, but was afterwards discontinued against the city and prosecuted against the defendant alone. By agreement of parties, the case was referred, under a rule of court, to referees, “ all questions of law being reserved, the findings of fact of a majority of said referees to be final.” The referees found that the plaintiff was in the exercise of due care ; that the ice was not caused by the defendant, but was due to natural causes, and that there was no defect in the condition and construction of the railroad at the place where the accident occurred, and found that judgment should be entered for the defendant with costs. There were two reports by the referees. The first was recommitted, with instructions to “report more fully the facts found by them in regard to the construction and condition of the railroad track, and in regard to the ice and the causes of the formation thereof at the place where it existed.” On the coming in of the second report, the plaintiff moved that the award be rejected and the reference discharged, because the plaintiff consented to the reference under a mistake of fact, because the referees had not reported all the material facts and no judgment could be entered on the facts as reported, and the court had no power to enter judgment on the award, and because the referees had exceeded their authority in finding that judgment should be entered for the defendant with costs. The defendant filed a motion that the award be confirmed and judgment entered thereon for the defendant. The plaintiff’s motion was overruled, and she appealed. The defendant’s motion was allowed, and the award was accepted and confirmed, and judgment entered thereon for the defendant. From this also the plaintiff appealed.

The action of the Superior Court in overruling the plaintiff’s motion to discharge the reference because it was entered into by her by mistake, cannot be reviewed here. None of the evidence in relation to that matter is before us; nor is any of the evidence heard by the referees. It would not matter if it were, since their findings of fact are expressly made final by agreement of the parties.

We discover no omission of any material fact from the report of the referees, nor any difficulty in entering judgment on , the award.

The case was pending in court at the time when it was referred, and whatever may be the rule as to references in pais, it is well settled that in such a case arbitrators have the power to award costs, though the rule of reference is silent on the subject. Nelson v. Andrews, 2 Mass. 164. Buckland v. Conway, 16 Mass. 396. Bacon v. Crandon, 15 Pick. 79. Vose v. How, 13 Met. 243. Jones v. Carter, 8 Allen, 431. Brown v. Mathes, 5 N. H. 229. Chapin v. Boody, 25 N. H. 285.

The finding that judgment should he entered for the defendant was a statement of the conclusion to which the arbitrators had come on the facts found by them, and as such was competent for them to make. The rulings of law which the plaintiff requested, and which the arbitrators refused, were reserved, as the reference provided should be done.

Judgment affirmed.