Herlihy v. Little

200 Mass. 284 | Mass. | 1908

Rugg, J.

These two actions were brought in the name of the personal representatives respectively of Mary F. Herlihy and of Benjamin O. Crane. The declaration in the Herlihy case contained four counts, each alleging in substance that the plaintiff was the administratrix of Mary F. Herlihy and that her intestate, by reason of specified negligence, in the first count, was “ mortally wounded and killed ” ; in the second, “ was greatly injured and died in consequence thereof ”; and in the third and fourth, was riding in an elevator, which fell “ thereby inflicting great injury ... on the . . . intestate, in consequence of which injury she died.” The notice given under R L. c. 106, § 75, stated that the death was preceded by conscious suffering. At the trial the plaintiff Herlihy moved to amend her writ by striking out the words indicative of her representative capacity, and by inserting, as descriptive of her, words of nearest kinship to the deceased and of dependency for support upon her wages, and to amend the declaration so as clearly to allege a cause of action under R. L. c. 106, § 73. The action thus set out after the amendment was by the dependent next of kin for the death, instantaneous or not preceded by conscious suffering, of her intestate. This amendment was allowed against the exception of the defendants, who contend that upon this record the court had no power to allow such an amendment. R. L. c. 173, § 48, empowers the Superior Court to allow any amendment, which will enable an action to be maintained for the cause for which it was originally intended to be brought. The court has no power to allow an amendment, which will introduce a new cause of action not intended at the time the writ was sued out. Silver v. Jordan, 139 Mass. 280. It is possible that the writ and declaration as originally framed set forth a cause of action under R. L. c. 106, § 72, for the recovery of damages for conscious suffering followed by death. But it does not unequivocally state conscious suffering, and, narrowly construed, asserts no such claim, while it does distinctly allege death as the result of the injury. At best it is doubtful on its averments whether the death was preceded by conscious suffering or not. It may be assumed that a cause of action under § 72 of R. L. c. 106 is a different cause of action from the one under § 73 of the same chapter. The notice given under R. L. c. 106, § 75, sets forth death and preceding conscious suffering, but such statements, necessarily preceding, and perhaps by a considerable time, the commencement of the action, are of slight consequence in determining the plaintiff’s intent at the time of suing out the writ or drafting the declaration, The fact that the action was brought in the name of the administratrix of the deceased is some indication of an intent to proceed under § 72, but it is by no means conclusive, and amendments are often allowed to correct a mistake in this respect. Hutchinson v. Tucker, 124 Mass. 240. Adams v. Weeks, 174 Mass. 45. Silva v. New England Brick Co. 185 Mass. 151. Drew v. Farnsworth, 186 Mass. 365. The allowance of the amendment made certain which section of the statute was relied upon, and cleared up what was before doubtful upon the pleadings. Hence it cannot be said as matter of law on this record that it introduced a new cause of action. If it be suggested that something occurred outside the record, it must be assumed that the trial judge before allowing the amendment was satisfied upon what appeared before him that the cause of action intended to be brought was for the recovery of death without conscious suffering. The circumstances under which this finding was made are not reported, and hence cannot be reviewed. See R. L. c. 173, § 121. St. 1908, c. 457, was enacted too recently to be applicable to this case.

In the Herlihy case it is argued that, because the notice required by the employers’ liability act was given by the administratrix, and contained the statement that the deceased “ received personal injuries resulting in death preceded by conscious suffering,” it will not support an action for death without conscious suffering. While the giving of a sufficient statutory notice is a condition precedent to a recovery, such a notice is not to be construed with technical refinement. Especially is this true when no counter notice is given as provided in R. L. c. 106, § 75 and c. 51, § 22. A description of the injury is not required. The purpose is to give to the employer information as to its time, place and cause, not to advise him specifically as to its details or effects. Carroll v. New York, New Haven & Hartford Railroad, 182 Mass. 237. By the present notice the defendants were informed of the death as the result of the injury and of its time, place and cause. The plaintiff was not required to give any further information. Amplification, which may turn out to be incorrect, as to a subject matter not required, cannot be held to invalidate an otherwise sufficient notice.

It has not been and could not properly have been argued in either action that there was no evidence of the negligence of the defendants. There was ample testimony to support a finding of that fact.

The intestate of each plaintiff was killed by the sudden drop of an elevator, in which they were riding, and the break and fall of a' counterweight connected with its operation. There was evidence tending to show that at some time previous to the day of the accident a notice had been posted in the elevator, to the effect that only ten persons could ride at one time, and there appears to have been no dispute that at the time of the accident there were thirteen people in it. The jury might have found that there was no notice in the elevator at the time of the accident, and that Miss Herlihy was in the elevator before the prohibited number was reached. There was evidence also from several experts that the added weight caused by the three persons above the permitted number did not contribute to the accident. It might have been found that the violation of the rule, if any was committed, was merely a condition of the accident, and not its cause, and was to be considered with all the other circumstances as bearing upon the question of the due care of the plaintiff’s intestate. McCarthy v. Morse, 197 Mass. 332. It was open also for the jury to infer that there was no violation of the rule, on the ground that the notice had been removed before the accident and was no longer in force.

In the Crane case also there was a motion to amend the declaration, which was allowed against the defendants’ exception. The first count in his original declaration clearly alleged instantaneous death as the ground of liability. For this reason, as well as for those heretofore stated, respecting the amendment in the Herlihy case, no error is disclosed in the allowance of the amendment.

The deceased, Benjamin O. Crane, was the assistant superintendent in the employ of the defendants, whose duty it was to see that the machinery in the factory was kept in repair, except that, with respect to the elevators, if they were out of order, it was his duty not to repair but to report to the owners of the building. There was contradictory evidence as to whether Crane knew of any defect in the elevator or of any irregularity in its working previous to the accident. Whether he did or not was therefore a question of fact. In other material aspects the evidence was conflicting. Even where it was not conflicting it was still for the jury to say how much of that which bore against the plaintiff’s contention was entitled to credence. Without reviewing it in detail, it is plain that a verdict for the defendant could not have been directed. Therefore the first request for ruling was properly refused.

As to the several other specific requests for rulings made by the defendants, it is perhaps enough to say that they dealt with particular phases or fragments of the testimony, which were not decisive of the case. It was not the duty of the trial judge to discuss each of these severally, and instruct the jury upon them. It appears that the case was submitted to the jury under, general instructions which were not excepted to. Hence the defendants do not appear to have suffered harm. But if the requests are examined in detail, no error appears in the refusals to grant them. The third request was refused properly, because it omits the necessary element, that in the exercise of reasonable prudence it would have been possible for the deceased to have discovered the defect which actually resulted in the injury. The fourth could not have been given because mere knowledge of the condition of the elevator was not sufficient to preclude recovery. There also must have been an appreciation of the risk of its use. The fifth and sixth requests did not correctly state the law as applicable to the evidence. The only evidence that it was dangerous so to pull the shipper as to cause the elevator to descend, when it stuck, came from a foreman in the employ of the defendants, who said he had a general knowledge about machinery but was not an expert, who was not shown on the testimony to have possessed any knowledge as to elevators, and who was the inferior of Crane in position. He testified that he once told Crane not to start the elevator downward when it stuck. It is not, as matter of law, want of due care to refuse to heed the suggestion of one who knows nothing • about the subject respecting which he undertakes to direct, unless there is a duty of obedience. Although experts upon elevators were witnesses, it does not appear that they were asked what might naturally have been expected to be the result of pulling the shipper as the plaintiff’s intestate did under the then known conditions. In the absence of evidence, it cannot be said to have been so plainly a careless act as. matter of common knowledge as to warrant an instruction to that effect.

What has been said respecting the notice in the elevator restricting the number of passengers to ten applies with almost equal force to the Crane case. It is not clear that the notice was in the car at the time of the accident, nor how long before it had been removed, nor could it be said to be certain upon the ■evidence that the accident resulted from the overloading of the elevator.

Judgment on the verdict in each case.