Bartley v. Boston & N. St. Ry. Co.

• Decision Date: 03 March 1908
• Citation: 198 Mass. 163,83 N.E. 1093
• Parties: BARTLEY v. BOSTON & N. ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

198 Mass. 163

83 N.E. 1093

BARTLEY v. BOSTON & N. ST. RY. CO.

Supreme Judicial Court of Massachusetts, Essex.

March 3, 1908

COUNSEL

Charles I. Pettingell and Robert E. Burke, for plaintiff.

Sweeney Dow & Cox, for defendant.

OPINION

BRALEY J.

While at work as a shoveler in the hold of a barge unloading coal for the defendant, the plaintiff's intestate was struck by a lump of coal which fell from an ascending bucket, and after a period of conscious suffering died from the injuries received. By the waiver of the second and fifth, and there being no evidence to support the third, which became immaterial by reason of the questions under which the case was submitted to the jury, the liability of the defendant finally rested upon the allegations in the first, fourth and sixth counts of the original declaration. Of these, the first and fourth which are at common law, alleged the employment of incomptent fellow servants, and a failure to warn, or instruct the decedent of the dangers attending the work while the sixth under Rev. Laws, c. 106, §§ 71, 72, charges that his injuries and subsequent death were caused by the negligence of some person, who had been intrusted by the defendant with the duty of superintendence. Before the enactment of St. 1906, p. 345, c. 370, counts at common law for conscious suffering, could not be joined with a count under the statute for conscious suffering followed by death, as the measure of damages is defferent. Smith v. Thomson-Houston Electric Co., 188 Mass. 371, 74 N.E. 664. But this statute being intended as remedial, is applicable to the present case, and the joinder of counts was permissible. Simmons v. Hanover, 23 Pick. 188, 194; Commonwealth v. Cochituate National Bank, 3 Allen, 42, 44; Rogers v. Nichols, 186 Mass. 440, 443, 71 N.E. 950; St. 1906, p. 345, c. 370. Before the passage of the amendatory act an executor or administrator could sue at common law for the conscious suffering of the decedent, and the measure of damages recoverable would have been limited only by the amount claimed in the writ. But he could not recover for the death in that action. By the amendment, the statutory action under section 72 to recover damages for conscious suffering and death is not changed, but the form of remedy has been enlarged. In effect the amended statute is the same as if it had been originally enacted as it now appears. After proper allegations of the death of the employé, the plaintiff may then declare for conscious suffering either by counting on the statute or, as at common law. But whichever way is taken, actions brought under section 72, since the amendment as well as before, are subject to the provisions of section 74, which imposes a maximum limitation of the amount recoverable, to be apportioned by the jury between the administrator and the widow or dependent next of kin. Rev. Laws, c. 106, §§ 72, 74; Smith v. Thomson-Houston Electric Co., ubi supra. It is the first contention of the defendant that there was no evidence of its negligence. The company, whose wharf was fully equipped with the necessary mechanical apparatus, had previously hired stevedores to unload its coal from the barges. But instead of employing them upon this occasion, the division superintendent ordered one of the company's foremen 'to take a gang of men at work upon the tracks and do the work.' Upon the evidence without reciting the details, the jury would have been warranted in finding that the fireman who was in charge of the hoisting engine at the time of the accident, and the 'hooker on' who managed the filled bucket below the level of the platform of the staging, by reason of their inexperience, were respectively incompetent to properly use, and manage the hoisting apparatus. These employés, as the defendant urges, may have been physically and mentally fitted to perform their ordinary duties either of repairing tracks, or in running an engine at the power station, but it cannot be said as matter of law, in the light of the testimony of the expert stevedore called by the plaintiff, and the uncontroverted description of the inefficient manner in which they performed their work at the wharf, that they were correspondingly competent in their new employment. It further could have been found that their lack of experience and skill was known to the division superintendent, with whose knowledge the defendant is to be charged, and that the accident would not have happened except for their incompetency. Ledwidge v. Hathaway, 170 Mass. 348, 350, 49 N.E. 656; Cooney v. Commonwealth Avenue St. Ry., 196 Mass. 11, 81 N.E. 905; Baldwin v. American Writing Paper Co., 194 Mass. 402, 82 N.E. 1, 2. If the defendant was not required to warn the decedent of obvious dangers, yet his knowledge of our language was very imperfect, and he had been transferred from his usual employment to an entirely new field of labor. When at work in the hold he was expected to stand under the ascending bucket, from which, if not properly hoisted, coal might fall upon him. He was injured in the afternoon of the first day, and before it could be said that from such opportunity of observation as his position afforded, he must be held from experience to have known of this possible danger. A risk of injury either from the nature of the appliances used, or the method employed in their operation even if open, may be found not to have been appreciated, where an employé hired for simple manual labor, with the performance of which he is familiar, and in connection with which machinery is not used, is suddenly put at work without instructions where machinery, even if not mechanically complicated, is being operated. Under suitable instructions it was for the jury to say, whether the decedent's intelligence and previous experience were such, that in setting him to perform work where he was fatally hurt, it was the defendant's duty to call his attention to the danger attendant upon his position. The defendant offered evidence that such warning was given, but the jury, of course, were not bound to accept it as true. There also was evidence that McMahon acted as a...