215 Mass. 199 | Mass. | 1913
The amended declaration in this action contained two counts, one at common law for bodily suffering and the other under the employers’ liability act for the death of the plaintiff’s intestate.
The defendant was engaged in the work of taking down and carrying away a bank or hill of sand and gravel. At the foot of the slope of the hill there was a pit or hole some twenty-five feet long, twelve feet wide and four feet deep. In this pit were two buckets three feet deep and three feet wide. Two men with long poles stood on the slope of the hill to loosen the sand and gravel which thus set in motion ran down into and filled the buckets. The buckets were then hooked on to a block running on a cable (as we understand the bill of exceptions) and were pulled across to the railroad where they were dumped into cars and carried away. On the morning in question, while the intestate was on the slope, an avalanche of sand and gravel carried the intestate down the slope on to one of the buckets. One of his legs was caught between the bail of the bucket and the bucket itself, and before he could extricate himself he was covered with sand and died of suffocation.
On this evidence the plaintiff was not entitled to recover on the common law count. At common law Connors was a fellow servant. On the plaintiff’s evidence the intestate was an experienced workman, having been at work on this bank for eighteen months.' He.had been told of the conditions which might make the place where he was at work dangerous and chose to continue his work in reliance upon Connors. In this respect the case differs from Gettins v. Kelley, 212 Mass. 171. The assurance of safety in McKee v. Tourtellotte, 167 Mass. 69, was given by the defendant, himself, while in the case at bar it was given by a fellow servant. Fitzsimmons v. Taunton, 160 Mass. 223, was the
Judgment for the defendant should be entered under the statute on the first count.
But this evidence did make out a case under the employers’ liability act on the part of a superintendent. See in this connection Carriere v. Merrick Lumber Co. 203 Mass. 322; Gettins v. Kelley, 212 Mass. 171. The third and seventh rulings asked for were rightly refused.
There was error, however, in the admission of some of the declarations of the intestate which were admitted under R. L. c. 175, § 66. It had appeared from evidence introduced by the plaintiff that the intestate had a father and mother in Italy who were “pretty old, ” and that the intestate had contributed to their support by sending them money. It also had appeared that the intestate came to this country eighteen months before the accident and had been continuously in the defendant’s employ since his arrival.
On cross-examination of one of the defendant’s witnesses the counsel for the plaintiff, against the objection and' exception of the defendant, was allowed to ask why the intestate said that he sent money to his parents, and he answered that he (the intestate) said “they were in need of it;” and in answer to the further question “Did he say why they needed it,” he was allowed to testify: “They did not get any rental from the crops and they needed the money to support themselves;” and to further questions, that he said that their farm was bad; that “the crops had come and there was not enough to pay the interest for hiring the place. ”
As we have already said it appeared in the evidence that the intestate came to this country in June, 1907, and remained here until he was killed on December 1,1908. Unless the crops referred to in his declarations (admitted in evidence against the defendant’s objection) were the crops of 1906 or earlier years, he could not have had personal knowledge of their failure. Manifestly the crops referred to in the declaration of the intestate were not the crops of 1906 and earlier years. These declarations therefore could
As the case must go back for a new trial we will deal with matters argued here which are likely to arise there.
1. The other declarations of the intestate were properly admitted. The fact that his parents were in need of his money might well be found to rest on facts known to the intestate before he left Italy.
2. In the original second count there was an allegation that the intestate “received grievous personal injuries so that he after-wards died,” and an allegation that “due notice of the time, place and cause of said injury was given to the defendant. ” These allegations warranted a finding that the cause of action relied on by the plaintiff when the action was commenced was one under R. L. c. 106, § 72, which had been misdescribed, and the amendment was properly allowed. R. L. c. 173, §§ 48,121. And, the finding being warranted, the allowance of the amendment is conclusive evidence that the cause of action relied on originally is the same as that set forth in the amendment. Tracy v. Boston & Northern Street Railway, 204 Mass. 13.
Judgment must be entered for the defendant on the first count and a new trial granted on the second count.
So ordered.