192 Mass. 53 | Mass. | 1906
1. We are of opinion that the seventh and tenth rulings asked for were rightly refused.
The defendant’s first contention in support of these rulings is that there was no evidence showing due care on Mehan’s part even if he had a right to be where he was, and the case comes within such cases as Cox v. South Shore & Boston Street Railway, 182 Mass. 497, and Clare v. New York & New England Railroad, 167 Mass. 39, 40. But it is to be noted that the iron pillar from which Mehan received the fatal shock was but three inches from the engine room floor on which Mehan was standing at the time, and while it is true that the evidence did not warrant a finding that the shock was received before Livesey had passed through the opening made by pushing back the upper bar, it did warrant the finding that it was received within a few seconds after he had done so. The jury were warranted in finding that Mehan and Armstrong helped Livesey in pushing the bar through the socket on the wooden post, that Livesey rushed through the opening so made, with his sand pail, to the regulator in question, some twenty feet frota the bar, and was in the act of throwing the sand on this regulator when Mehan received his shock. If the emergency justified and required Mehan to be where he was, the evidence in our opinion warranted a finding that Mehan was in the exercise of due care.
And we are of opinion that the jury were warranted in finding that the emergency did justify and require Mehan to be where he was. The emergency in question was described by Mehan’s superior, the engineer, as follows: “ a report like thunder, only it was not like thunder, and a flash like a flash of lightning. . . . The third regulator from me was smoking, and a little flame coming out of one corner was on the chain cable leading up to the side; it looked like two tapers; the tape insulation was burning.” This happened at 6.45 in the morning, when there were but three persons in the building, the switchboard tender, Livesey, the engineer, Armstrong, and the oiler, Mehan, whose death is the subject of this action. Mehan immediately rushed to the bar, which had to be unscrewed and pushed through the socket before Livesey could get into the electrical enclosure on the floor in question, and Armstrong followed, after seeing to the engine which then was running. The evidence warranted the finding
This conclusion is fortified by the testimony of Mehan’s immediate superior, Armstrong the engineer, that “ in case of fire as I understood it his duty was to assist in putting it out if possible,” and by the fact testified to by Livesey that there was a fire four or five weeks before the accident here in question, which he (Livesey) assisted in putting out, and “ Armstrong and Mehan were there assisting.”
The defendant’s last contention is that no reason is disclosed why Mehan took hold of the post, if he did, and no invitation for him to do so. The post was but three inches away from the engine floor • where the emergency called Mehan, and he might unintentionally have come in contact with it.
'2. We are of opinion that the jury were warranted in finding that the defendant was negligent, and that the accident was caused by its negligence. We assume that the defendant was not liable for grounding the iron framework of the switchboard gallery by carrying from it a copper wire to a metal plate buried in the ground, in place of connecting it with the water pipes, because the former method was in common use although not so good a method as the latter. But the jury were warranted in finding that the company knew from the shocks received on the day before the accident by the masons then at work in the basement, that the system in use was not in fact carrying off the electricity which found its way into the framework, and that it was negligent in continuing under these circumstances without giving notice of the danger, and that that negligence caused Mehan’s death because the current in the iron post took the line of least resistance through his body and the engine room floor to the water pipes. For these reasons the first ruling was in our opinion rightly refused.
4. The other contention made by the defendant is that the evidence did not warrant a finding that the father and mother of the deceased were dependent on him for support within R. L. c. 106, § 73.
It is settled that partial dependence is enough. Mulhall v. Fallon, 176 Mass. 266. Welch v. New York, New Haven, & Hartford Railroad, 176 Mass. 393. Boyle v. Columbian Fire Proofing Co. 182 Mass. 93. The case relied on by the defendant (Hodnett v. Boston & Albany Railroad, 156 Mass. 86) was a case where it did not appear that the plaintiff did not support herself by her own wages. See Mulhall v. Fallon, 176 Mass. 266, 267.
The evidence warranted a finding that at the time of the son’s death the family consisted of father, mother, two daughters and one son in addition to the son whose death is the subject of this action. The son whose death is here in question was killed on December 11, 1903. The father and mother had no property and no money in bank. The father was seventy and the wife sixty years old. The father seems to have had no regular
To find for the plaintiff the jury had to find that apart from the board and lodging of Joseph who was in the medical school, the parents were under all the circumstances dependent, in part at least, upon the son who was killed. There was no reason why the expense of Joseph’s board and lodging should be charged wholly against the son rather than against the daughter who worked. We do not think that his presence in the family was fatal. Neither do we think the fact fatal that the family
Uxeeptions overruled.
The ruling requested was as follows : “ 11. In the present condition of the science of electricity as applied to electric lighting plants in the absence of other evidence of negligence on the part of the defendant the mere occurrence of the accident in this case is no evidence of actionable negligence on the part of the defendant corporation.”