321 Mass. 586 | Mass. | 1947
The plaintiff brings this action of tort under the Federal employers’ liability act, U. S. C. (1940 ed.) Title 45, §§ 51-60, for the death of her husband, an employee of the defendant, who lost his life during a fire in the defendant’s freight shed in Salem on June 2, 1944.
These facts could have been found: On the morning of June 2, 1944, the deceased was employed by the defendant as a “freight handler” at its freight shed in Salem. His hours were from 8:30 a.m. to 5:30 p.m., and on the morning of June 2 he had arrived at the freight shed shortly after eight o’clock. At the extreme east end of the shed was an office, next to which was a boiler room. Next to the boiler room, extending westerly, was a long freight shed with twelve openings or doors at intervals of about twenty feet. The freight shed, including the office building, was four hundred forty-six feet long. The doors were numbered consecutively, commencing with door No. 1 which is next to, the boiler room. Between eight and eight thirty o’clock, one Whitehead, who was employed by an express company and had come to the freight shed to get some freight, noticed fire or smoke in the vicinity of door No. 3. Whitehead asked Botieri, the defendant’s foreman under whom the deceased worked, for a fire extinguisher. Botieri, who was then inside the freight shed, “looked out and saw the fire start
About four minutes after the outbreak of the fire Botieri observed the deceased in the boiler room refilling a fire extinguisher with water. The deceased was last seen alive while going from the boiler room into the freight shed. The smoke in the freight shed at that time was so dense that a fellow employee who was following him was obliged to turn back. Thirty or thirty-five minutes after the arrival of the fire department, the body of the deceased was discovered by one of the firemen “not too far inside” of door No. 1. Near the deceased was a fire extinguisher. This part of the freight shed had not been burned but there “was evidence of smoke and great heat.”
The freight shed at the time of the fire was “extra full” of freight. It was the “duty of all the men whether on [duty] or off duty to protect . . . [the defendant’s] property.”
The case was rightly submitted to the jury.
The evidence amply warranted the inference that the deceased met his death while in the act of protecting the property of his employer, and no contention is made to the contrary. And the defendant concedes that the origin of the fire could have been found to have been due to its negligence. The sole ground relied on by the defendant in support of its' motion for a directed verdict is that this negligence was not the proximate cause of the deceased’s death. We cannot agree. The deceased was under a duty to protect the propr erty of his employer. That duty was to do what he could,
In most of the jurisdictions where the question has arisen it has been held that a reasonable attempt by an employee to save his employer’s property, which the latter’s negligence has endangered, is not, as matter of law, such a remote consequence of the employer’s negligence as to reheve him from liability to the employee for injuries sustained during the attempt. Erie Railroad v. Caldwell, 264 Fed. 947 (C. C. A. 6). Brown v. New York Central Railroad, 53 Fed. (2d) 490 (D. C. E. D. of Mich.). Atlantic Coast Line Railroad v. Russell, 215 Ala. 600. Henshaw v. Belyea, 220 Cal. 458, 468-469. Pullman Palace Car Co. v. Laack, 143 Ill. 242, 258-259. Martin v. North Jersey Street Railway, 52 Vroom, 562. Pegram v. Seaboard Air Line Railway, 139
We recognize that since this action is brought under a Federal statute the governing law is that established by the Supreme Court of the United States, but our attention has been directed to no decision of that court, and we have found none, that is in conflict with anything herein decided.
Exceptions overruled.
The declaration also contained a count based on G. L. (Ter. Ed.) c. 229, but this was waived.
The defendant waived its exceptions to the charge at the arguments before us.