Brennan v. Standard Oil Co. of New York
| Decision Date | 27 February 1905 |
| Citation | 73 N.E. 472,187 Mass. 376 |
| Parties | BRENNAN v. STANDARD OIL CO. OF NEW YORK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
P.J. McCusker, for plaintiff.
Wm. A Munroe, for defendant.
The first count is founded upon the statutory liability for causing the death of the plaintiff's intestate, which the plaintiff seeks to enforce as the representative of the next of kin, for whom he would hold the proceeds. The second count is upon the liability at common law for injuries to the intestate, for which he had a right of action during his life, and the claim is made by the plaintiff as legal representative of the estate of the deceased, for which he would hold the proceeds. In the first the plaintiff acts only as trustee for the next of kin; in the second, only as trustee for those interested in the estate. These claims do not accrue to him in the same capacity, and hence, by the rules of pleading at common law, which in this respect have not been changed by our statutes, they cannot be joined in the same action. Gould, Pl. & Pr. c. 4, § 93, and cases cited; Cincinnati, Hamilton & Dayton Railroad v Chester, 57 Ind. 297. See, also, Ranney v. St Johnsbury & Lake Champlain Railroad, 64 Vt. 277, 24 A. 1053, where this principle was recognized, but not applied. The verdict therefore cannot stand on both counts. If it can stand upon only one count, the plaintiff has elected to rely upon the first. This makes it necessary to inquire whether the evidence warranted the verdict upon that count. Since the deceased was a child only four years and eight months old, it was incumbent on the plaintiff to show that there was no contributory negligence on the part of the deceased, or of those who had charge of him. Although the question is not free from difficulty, we will assume, in favor of the plaintiff, without deciding, that the evidence would entitle him to go to the jury on this part of the case.
To maintain the action for the death of the plaintiff's intestate, it must be shown that the accident was caused by the gross negligence of the defendant's servant, the driver of the team. The statute upon which the plaintiff relies recognizes or creates a distinction between ordinary negligence and gross negligence. Death caused by the personal negligence of a defendant, without fault of the deceased person, creates a liability. But for a death caused by the negligence of the defendant's servants there is no liability unless the negligence is gross. The degree of difference between negligence and gross negligence, under this statute, cannot be stated with mathematical accuracy. But gross negligence is a materially greater degree of negligence than the mere lack of ordinary care. The statute compels us to recognize this distinction in the trial of cases like that now before us.
The plaintiff's intestate was run over and fatally injured on Bridge street, in Salem, which is a way that leads from Salem to the adjacent city of Beverly. It is 50 feet wide including the sidewalks, each of which is 6 feet to 6 1/2 feet wide. The gutters are paved, and are 5 1/2 feet wide from the curbstone. We may infer that the street is paved or macadamized, and smooth and hard between the gutters. At a point about 260 or 270 feet from the place of the accident, there is a grade of 4 feet in 100, and this diminishes to 2 feet in 100 near the place of the accident. The defendant's driver, at about half past 5 o'clock in the afternoon of May 4, 1901, was driving down this slight descent, on the right-hand side of the middle of the street, a team consisting of a heavy tank wagon drawn by three horses, harnessed, as we understand, all abreast, and weighing from 1,400 to 1,600 pounds each. According to the testimony of all the witnesses, the plaintiff's intestate was standing on or near the sidewalk as the team approached, and went out in front of the team immediately before the accident. The driver testified, without contradiction, that there was a driveway across the sidewalk at that point. The first of the plaintiff's witnesses who saw the accident said that he first saw the boy when the team was about 40 feet from the boy, and that 'he was backing out from the sidewalk into the gutter.' The next witness for the plaintiff said that when he first saw him he 'stood beside the...
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