Hammond, J.
As finally submitted to the jury this was an action of tort brought under R. L. c. Ill, § 267, by the administrator of the estate of John A. Nauss, to recover for the death of the intestate who was not a passenger. The accident happened about half past nine o’clock in the morning of June 2, 1903. One of the questions is whether the evidence warranted a finding of gross negligence on the part of the defendant’s servants and agents.
It appeared that the defendant had contracted to carry that day a fire engine from Waltham to Lawrence; that after the *367engine had been placed upon a flat car belonging to the defendant and standing upon a “ siding ” north of the main track, near the station at Waltham, the train hands who had been engaged in the loading left the car; that then the deceased and one McCleaves, both of whom were members of the fire company and had assisted in the loading, by the permission of the defendant, went upon the car for the purpose of “ shoeing ” the engine, covering it with cloth and taking other precautions to protect it from injury while on its journey. The evidence tended to show that while they were thus engaged the freight train came along, — the train upon which the “ tub was to go,” and they both knew it. McCleaves, called by the plaintiff, testified that shortly after the arrival of this train, “ some of the men . . . came over and asked us if we were ready and I said ‘ John, . . . [meaning Nauss] ... we are not ready to haul out yet.’ Then the question was asked if she was ready so she could be shifted. I said, ‘ Certainly she can be shifted.’ . . . They gave us fair warning then to look out because they were going to shift us over. . . . After the engine backed up they started us out down over Lyman Street and threw us out on the other siding, that is, the one on the right hand or south side of the main track. I should judge they threw us over 100 or 150 feet from Lyman Street. I don’t know now the distance; I have forgotten. I wouldn't swear now how many cars they threw with us. All I can testify to is that there were other cars with ours. They threw off two cars anyway and perhaps more. . . . The car which was thrown off with us was a large box car. It was on thé Boston side of our car and hitched to our flat car. After we were thrown off there I don’t know what became of the engine. ... I should say there were 15 cars more or less. Our flat car was the rear car and the engine was at the other end of the train towards Boston. . . . After we had been backed down on the other siding in the way I have described we kept on working.”
As to the manner of the accident McCleaves testified that he had finished and was pulling off his overalls ; and that while he was doing this “ the first . . . [he] . . . knew there was a heavy jar ” which “ slewed ” him. “ I grabbed on the spear handle and when I turned there was no other man there, so I jumped to see what the trouble was. ... I had no warning that there was to *368be any jar. . . . The last I saw of Nauss he was standing on the right hand side within a foot or eighteen inches of the end of the car, ... on the right hand side of the car. The last time I saw him doing anything on the car he was picking up tools which belonged in the chest. After we received this jar the ear moved. I jumped right off as soon as I could. ... I jumped off on the right hand side and saw him [Nauss] under the car. . . . The train kept moving back and it seemed to roll him right over and over. . . . His whole body was between the rails. . . . The car in front of us went over him and part of another car. . . . When I got to Nauss he was dead.” He further testified that he had no information from anybody that the train was backing down and did not pay any attention to the train; that Nauss and he were the only persons on the car. Upon cross-examination he testified that at the time of the jar the fire engine was all right so far as he was concerned. “ Everything had been done that there was to do except looking after the other small stuff that was around there. The small stuff had been picked up so far as I know. ... I had no further duty to perform so far as the engine or anything upon the car was concerned. ... I had seen Nauss on the opposite side of the spear, up towards the chest. ... I didn’t see him after I came around down from where I was. Just before I walked up I took my position on the left hand side of the spear, I was standing right up near him, right at the edge of the chest on the right hand side of the spear. We had been there for quite a while, five or ten minutes perhaps. We were right at the end of the chest . . . only simply talking. . . . Then I started and went around the chest . . . I left Nauss about where we had been talking at the right hand corner of the chest . . . within eighteen inches of the sleeper perhaps.” This sleeper was upon the car. He further testified that he heard no warning of the approach of the car, although he testified that he was not paying any attention for a warning. There was evidence that after the accident a padlock was found lying near the body and that the chest was unlocked. The conductor of the freight train testified that he gave notice of the backing down of the train.
The deceased and McCleaves knew that the flat car was to form a part of the train which was being made up, and that the *369car would soon be attached to it. Their position was one in which they were bound to take these facts into consideration. The case is different from that in which the party has a right to think that he can work in safety without paying any heed to his position. The conductor of the train had the right to expect that the men on the car, fully aware of the general purpose of the movements of the train engine and of the connection of the flat car with these movements, would under the circumstances expect some disturbance and would not place themselves where a jar likely to arise from the coupling of the car would throw them under the wheels. Assuming therefore that, as a precaution to insure their safety in case of their failure to protect themselves, due care called for some warning of the coupling of the cars, we think, in view of the circumstances, that the failure to give such a warning, while it may be evidence of negligence, falls far short of showing gross negligence. In other words, to the conductor there did not appear to be any such probability that these men would be so regardless of their own safety as to place themselves where they would be in danger of falling under the wheels or being otherwise seriously injured if there was a coupling without warning, as to make a failure to give warning gross negligence as distinguished from ordinary negligence. The case differs from cases like Hartford v. New York, New Haven, & Hartford Railroad, 184 Mass. 365, where the conductor fails to give a warning when men are supposed to be working under the cars or elsewhere, in such relation to the car as to lead to reasonable apprehension that an unexpected or premature starting of the car would lead to death or serious injury. See Moran v. Milford f Uxbridge Street Railway, 193 Mass. 52; Dolphin v. Worcester Consolidated Street Railway, 189 Mass. 270.
Exceptions sustained.