Bartley v. Boston & Northern Street Railway Co., 198 Mass. 163

198 Mass. 163 | Mass. | 1908

Braley, J.

While at work as a shoveller in the hold of a barge unloading coal for the defendant, the plaintiff’s intestate was struck by a lump of coal which fell from an ascending bucket, and after a period of conscious suffering died from the injuries received. By the waiver of the second and fifth counts, and there being no evidence to support the third, which became immaterial by reason of the questions under which the case was submitted to the jury, the liability of the defendant finally rested upon the allegations in the first, fourth and sixth counts of the original declaration. Of these, the first and fourth, which are at common law, alleged the employment of incompetent fellow servants, and a failure to warn or instruct the decedent of the dangers attending the work, while the sixth, under R. L. c. 106, §§ 71, 72, charges, that his injuries and subsequent death were caused by the negligence of some person who had been entrusted by the defendant with the duty of superintendence. Before the enactment of St. 1906, c. 370, counts at common law for conscious suffering could not be joined with a count under the statute for conscious suffering followed by death, as the measure of damages is different. Smith v. Thomson-Houston Electric Co. 188 Mass. 371. But this statute being intended as remedial, is applicable to the present case, and the joinder of counts was permissible. Simmons v. Hanover, 23 Pick. 188, 194. Commonwealth v. Cochituate National Bank, 3 Allen, 42, 44. Rogers v. Nichols, 186 Mass. 440, 443. St. 1906, c. 370. Before the passage of the amendatory act an executor or administrator could sue at common law for the conscious suffering of the decedent, and the measure of damages recoverable would have been limited only by the amount claimed in the writ. But he could not recover for the death in that action. By the amendment, the statutory action under § 72 to recover damages for conscious suffering and death is not changed, but the form of remedy has been enlarged. In effect the amended statute is the same as if it had been originally enacted as it now appears. After proper -allegations of the death of the employee, the plaintiff may then declare for conscious suffering either by counting on the statute or as at common law. But whichever way is taken, actions brought under § 72, since the amendment as well as before, are subject to the provisions of § 74, which imposes a maximum limitation of the amount recoverable, to be apportioned by the jury between the administrator and the widow or dependent next of kin. R L. c. 106, §§ 72, 74. Smith v. Thomson-Houston Electric Co., ubi supra.

It is the first contention of the defendant that there was no evidence of its negligence. The company, whose wharf was fully equipped with the necessary mechanical apparatus, had previously hired stevedores to unload its coal from the barges. But instead of employing them upon this occasion, the division superintendent ordered one of the company’s foremen “ to take a gang of men from work upon the tracks and do the work.” Upon the evidence, without reciting the details, the jury would have been warranted in finding that the fireman who was in charge of the hoisting engine at the time of the accident, and the “ hooker on ” who managed the filled bucket below the level of the platform of the staging, by reason of their inexperience were respectively incompetent to properly use and manage the hoisting apparatus. These employees, as the defendant urges, may have been physically and mentally fitted to perform their ordinary duties either of repairing tracks or in running an engine at the power station, but it cannot be said as matter of law, in the light of the testimony of the expert stevedore called by the plaintiff, and the uncontroverted description of the inefficient manner in which they performed their work at the wharf, that they were correspondingly competent in their new employment. It further could have been found that their lack of experience and skill was known to the division superintendent, with whose knowledge the defendant is to be charged, and that the accident would not have happened except for their incompetency. Ledwidge v. Hathaway, 170 Mass. 348, 350. Cooney v. Commonwealth Avenue Street Railway, 196 Mass. 11. Baldwin v. American Writing Paper Co. 196 Mass. 402. If the defendant was not required to warn the decedent of obvious dangers, yet his knowledge of our language was very imperfect, and he had been transferred from his usual employment to an entirely new field of labor. When at work in the hold he was expected to stand under the ascending bucket, from which, if not properly hoisted, coal might fall upon him. He was injured in the afternoon of the first day, and before it could be said that from such opportunity of observation as his position afforded he must be held from experience to have known of this possible danger. A risk of injury either from the nature of the applicances used, or the method employed in their operation even if open, may be found not to have been appreciated, where an employee hired for simple manual labor, with the performance of which he is familiar, and in connection with which machinery is not used, is suddenly put at work without instructions where machinery, even if not mechanically complicated, is being operated. Under suitable instructions it was for the jury to say, whether the decedent’s intelligence and previous experience were such, that, in setting him to perform work where he was fatally hurt, it was the defendant’s duty to call his attention to the danger attendant upon his position. The defendant offered evidence that such warning was given, but the jury, of course, were not bound to accept it as true.

There also was evidence that McMahon acted as a superintendent. He was present as a foreman of the defendant, expressly charged to unload the barge, and overlooked the work as it proceeded. Murphy v. New York, New Haven, & Hartford Railroad, 187 Mass. 18, 21. Peterson v. Morgan Spring Co. 189 Mass. 576, 579. In exercising supervision the jury could find that he either knew, or ought to have known, that the bucket which previously had come in contact as it ascended either with the scaffolding or end of the staging, was being carelessly handled, either by the “ hooker on,” or the engineer or his fireman, and that if this method was not remedied, or the shovellers in the hold were not warned of the danger, they might be injured from falling coal. His failure to do either was evidence of negligence. Davis v. New York, New Haven, & Hartford Railroad, 159 Mass. 532. Feeney v. York Manuf. Co. 189 Mass. 336, 340.

In this connection, the exception to the evidence that directions regarding the conduct of the work were given by McMahon after the accident may be noticed. No recitals are given from which the scope of these directions appear. But if incompetent when treated as in the nature of admissions, because not authorized by the defendant, the evidence being descriptive of the process used as shown by its continuance, was admissible on the issue of his negligence. See O'Malley v. Twenty-Five Associates, 170 Mass. 471, 477; Cloutier v. Grafton & Upton Railroad, 162 Mass. 471.

It is further contended, that the decedent assumed the risk. But whatever he may have known from association or report of their fitness to perform their usual duties, he was without any. previous experience of the inability of either the fireman or the “ hooker on ” properly to manage the hoisting machinery, except what he could have learned during the few hours that preceded the accident. It was, therefore, a question of fact, rather than of law, whether from the place where he worked he should have observed and comprehended their inefficiency. Reardon v. Byrne, 195 Mass. 146. Cooney v. Commonwealth Avenue Street Railway, ubi supra.

The remaining questions arise under the requests for various rulings, which were refused. It is a condition precedent under the statute, before any recovery can be had for his death, that the deceased servant left either a widow or dependent next of kin. Smith v. Thomson-Houston Electric Co., ubi supra. But while the rulings requested that the notice was insufficient because it did not contain such statement, and that upon all the evidence the plaintiff could not recover, were rightly refused, as the time, place and cause of the injury having been stated, nothing further was necessary, and the plaintiff had the right to go to the jury on all the counts as to conscious suffering, yet the refusal to rule, that no recovery could be had for the death of the intestate as the pleadings then stood, was wrong. Lynch v. Allen, 160 Mass. 248. Brick v. Bosworth, 162 Mass. 334. R. L. c. 106, §§ 72, 73. Smith v. Thomson-Houston Electric Co., ubi supra. The plaintiff, however, contends that this difficulty was obviated by the amended or substituted declaration allowed after verdict, which sets forth that the decedent left a sister who was dependent upon him for support. No suggestion is made that this question was not submitted to the jury, but the defendant contends that having been well taken at the time, its right to the exception cannot thus be divested. It undoubtedly was within the discretionary power of the judge either before or after verdict to allow the amendment, which in all other respects substantially conformed to the original declaration. Upon its allowance the error was cured. Cogswell v. Hall, 185 Mass. 455. Cronan v. Woburn, 185 Mass. 91, 95.

It is next said, that the evidence failed to show either that the sister was living, or that, if alive, she was dependent upon her deceased brother. But if shown to have been living three years before his death, the presumption that she still lived continued until the contrary appeared, and it could have been inferred from the evidence, that being in feeble health his sister, to whom he had made remittances in money, relied upon his pecuniary aid for her support. A partial dependence is sufficient to satisfy the statute. McNary v. Blackburn, 180 Mass. 141, 144. Boyle v. Columbian Fire Proofing Co. 182 Mass. 93, 101.

Exceptions overruled.