Hix v. New York Cent. & H.R.R. Co.

• Decision Date: 25 May 1918
• Citation: 230 Mass. 309,119 N.E. 827
• Parties: HIX v. NEW YORK CENT. & H. R. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 309

119 N.E. 827

HIX

v.NEW YORK CENT. & H. R. R. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

May 25, 1918.

Report from Superior Court, Middlesex County; William Cushing Wait, Judge.

Action to recover penalty for causing a death by Elizabeth R. Hix, administratrix, against the New York Central & Hudson River Railroad Company, resulting in verdict for defendant. On report. Judgment for plaintiff.

Hollis & Murchie, of Concord, N. H. (Alex. Murchie, of Concord, N. H., and Tyler, Corneau & Eames, of Boston, of counsel), for plaintiff.

G. L. Mayberry and L. A. Mayberry, both of Boston, for defendant.

DE COURCY, J.

The plaintiff's intestate, Warren A. Hix, was instantly killed on October 9, 1913, while working as one of an engineering crew in the employ of the defendant. This action is brought to recover damages in the nature of a penalty prescribed by St. 1906, c. 463, pt. 1, § 63, as amended by St. 1907, c. 392, and St. 1912, c. 354. The only question presented is, whether there was evidence entitling the plaintiff to go to the jury.

The evidence would warrant the finding of the following facts: The defendant was building a new piece of road at Becket; the work of excavation being done by an independent contractor. At the place where the injury occurred a cut had been made through a ledge, and its sides were from fifty-five to sixty-five feet in height and substantially vertical. The contractor had finished his work at this place, with the exception of knocking off some projecting stone; and his men were working on the east end of the job, one thousand feet or more away. A gang of five engineers, all employés of the defendant, was making measurements for the final estimates of the amounts to be paid to the contractor. At times it was necessary for some one to go down the face of the cliff to measure the cross-sections; and this was part of the work of the chainman Hix, or of the Boothby. A rope was needed for this purpose. While the defendant had ropes and other appliances at its storehouses in Pittsfield and Springfield, twenty-five miles away, it had none at the place of the accident. Boothby, who had charge of the engineering gang when the civil engineer Bonnemort was absent, found a rope, an inch or more in size, on the top of the cliff, apparently abandoned or left there by the contractor. This rope was tested in the presence of Boothby and Hix. It was used by both, in turn, at another point in the cut. The foreman, Bonnemort, who was on the ground in the cut, saw and acquiesced in the use of the rope at the place of the accident. Here it was suspended over the rock edge of the cliff, the other end being wound around a stump, and held by one Strong. Hix went down, took some measurements, and returning had reached the edge of the cliff where Boothby was waiting to give him a hand, when the rope parted, and he fell to the bottom of the cut, and was killed.

[3] The duty of exercising reasonable diligence to furnish its employés with necessary and suitable ropes, and the continuing duty of inspection and repair, was personal to the defendant. It could not be avoided by delegating its performance to the foreman; the failure of the foreman to supply and inspect the rope would be that of the employer whose duty he was undertaking to perform. Ryan v. Fall River Iron Works Co., 200 Mass....