Sughrue v. Booth

231 Mass. 538 | Mass. | 1919

Losing, J.

It is in effect conceded by the defendant that the plaintiff’s intestate was killed by the negligence of the defendant’s servants in unloading the cargo of the steamship Gulfaxe. The defendant has undertaken to uphold the ruling of the presiding judge on the ground that to make out liability for conscious suffering the plaintiff had to prove reckless and wanton misconduct on the part of the defendant’s servants and that he had to prove gross negligence to make out liability for death.

At the time in question the Gulfaxe was in the custody of the United States marshal who had appointed the intestate his custodian. The defendant was a stevedore engaged in unloading the cargo of the steamship.

The defendant’s contention as to the measure of the defendant’s liability for conscious suffering is based on the assumption that the deceased was a licensee. But, if the deceased was a licensee of the owner of the Gulfaxe, that fact is immaterial in this action against the stevedore. Boutlier v. Malden, 226 Mass. 479. Even if the defendant had been the owner of the Gulfaxe and the intestate nothing but a licensee, the duty owed by the defendant in unloading the cargo would have been to use ordinary care. Corrigan v. Union Sugar Refinery, 98 Mass. 577. The truth is, however, that the defendant owed the intestate the duty of exercising due care in unloading the cargo for the same reason that one traveller on a public way owes another traveller on the way the duty of exercising due care not to injure him. In that case and in the case at bar both persons are rightly where they were. For the reasons stated the decision in Kjaer & Isdahl v. Etier, 222 Fed. Rep. 243, has nothing to do with the case at bar.

Since St. 1907, c. 375, amending R. L. c. 171, § 2, it is only necessary to show ordinary negligence to hold a defendant liable • for the death of a‘ person in the position, of the plaintiff. We are of opinion that the jury could have found that the intestate was in the exercise of due care.

It was stipulated that, if the presiding judge “was wrong in directing a verdict . . . , judgment shall be entered for the plaintiff in the sum of $2,500.” That means that, if the plaintiff had a right to go to the jury on either count, judgment is to be entered for the plaintiff in the sum of $2,500. We are of opinion that the judge was wrong in case of both counts. It follows that judgment must be entered for the plaintiff in the sum of $2,500.

So ordered.