209 Mass. 81 | Mass. | 1911
The plaintiff’s intestate while working for the mills as a brakeman in the management of a dump car loaded with coal, suffered injuries by the sudden and premature overturning of the car when in transit, from which after a short period of conscious suffering he died. It is conceded, that the car was defective and unsafe, and the questions are, whether there was evidence of negligence on the part of the respective defendants, or of the intestate’s due care.
We first consider the exceptions of the mills. The railroad owned the car, which with other cars filled with coal consigned to the mills, had been left on a side track near the premises, and from there they were drawn by horses over a spur track into the defendant’s yard, and unloaded at the coal pocket. The work of moving and unloading was under the sole control of the mills,
The exceptions of the railroad corporation relate to the rulings and instructions permitting the jury to find, that it could be held liable at common law, and under St. 1906, c. 463, Part I. § 63, with the mills for concurrent negligence or a joint tort. It is participation in the wrong which establishes liability, and not the amount of damages which may be recovered either at common law, or under our statutes authorizing an action for death caused by the wrongful act of the defendant. Oulighan v. Butler, 189 Mass. 287, 293, 295. Flynn v. Butler, 189 Mass. 377, 387, 388. The proximate cause of the accident having been the defective car, the plaintiff was entitled to maintain her action against each or all who contributed to the injury and death of her intestate, although she could have but one satisfaction in damages. Koplan v. Boston Gas Light Co. 177 Mass. 15. Turner v. Page, 186 Mass. 600. Doe v. Boston & Worcester Street Railway, 195 Mass. 168. Feneff v. Boston & Maine Railroad, 196 Mass. 175, 581, 582. Lockwood v. Boston Elevated Railway, 200 Mass. 537, 538.
It is urged, that the mills having used the car in its business, and as a part of its works, the control was changed, and the
In each case the exceptions must be overruled.
So ordered.