Polvere v. Hugh Nawn Contracting Co.

• Decision Date: 17 June 1913
• Citation: 102 N.E. 334,215 Mass. 199
• Parties: POLVERE v. HUGH NAWN CONTRACTING CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 199

102 N.E. 334

POLVERE v. HUGH NAWN CONTRACTING CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 17, 1913

SYLLABUS

The court refused defendant's third and seventh rulings requested as follows:

'(3) Upon all the evidence the plaintiff is not entitled to recover under the second count of his declaration.'

'(7) Under the second count of the plaintiff's declaration the plaintiff is not entitled to recover damages for the death of the plaintiff's intestate.'

Plaintiff moved to amend the declaration by adding at the end of the second count thereof:

'That the death of said intestate was not instantaneous and was preceded by conscious suffering; that at the time of his death he had next of kin, to wit, a father, Gregorio Polvere, and a mother Maria Giuseppa Polvere, who was dependent on his wages for support; that said dependent next of kin was surviving at the time of the commencement of this action.'

COUNSEL

John E Crowley and Wm. R. Buckminster, both of Boston, for plaintiff.

Sawyer Hardy & Stone, of Boston (Edward C. Stone, of Boston, of counsel), for defendant.

OPINION

LORING J.

The amended declaration in this action contained two counts, one at common law for bodily suffering and the other under the Employer's Liability Act for the death of the plaintiff's intestate. The defendant was engaged in the work of taking down and carrying away a bank or hill of sand and gravel. At the foot of the slope of the hill there was a pit or hole some 25 feet long, 12 feet wide and 4 feet deep. In this pit were two buckets 3 feet deep and 3 feet wide. Two men with long poles stood on the slope of the hill to loosen the sand and gravel which thus set in motion ran down into and filled the buckets. The buckets were then hooked on to a block running on a cable (as we understand the bill of exceptions) and pulled across to the railroad where they were dumped into cars and carried away. On the morning in question, while the intestate was on the slope, an avalanche of sand and gravel carried the intestate down the slope on to one of the buckets. One of his legs was caught between the bail of the bucket and the bucket itself, and before he could extricate himself he was covered with sand and died of suffocation. The jury were warranted in finding that this accident was caused through the negligence of one Connors, who was admitted by the defendant to be a superintendent within the meaning of the employer's liability act. The negligence (which the jury were warranted in finding) consisted in this: Early in the morning of the day of the accident one of the gang loading the bucket, which the intestate was not at work upon, went on top of the hill with a sledgehammer and knockd down a frozen 4-foot overhang at the top of the slope. He then walked along the top to the other end of the slope, being the end where the plaintiff's gang was at work, and found a crack about an inch wide, some 5 or 6 feet long, and some 4 feet back from the edge of the slope. The witness then called to Connors, the superintendent, that there was a crack at that end of the slope, and that the overhang 'ought to be broken the same as I broke my end,' and that it was not safe to work underneath it. To this Connors answered that he did not think it was necessary; that it was safe enough. At this time the intestate was at work on the slope below the overhang just spoken of, loosening the sand with a pole. The talk between the witness and Connors was in English, and the intestate (an Italian) did not understand English. Thereupon the witness told the intestate in Italian that he (the witness) did not think it safe for him (the intestate) to work where he was working, but that Connors 'did not think it [the overhang] would come down'; that Connors 'said that it would not come down.' The overhang did break off as the witness said it would, and caused the avalanche which killed the intestate.

On this evidence the plaintiff was not entitled to recover on the common-law count. At common law Connors was a fellow servant. On the plaintiff's evidence the intestate was an experienced workman, having been at work on this bank for 18 months. He had been told of the conditions which might make the place where he was at work dangerous and chose to continue his work in reliance upon Connors. In this respect the case differs from Gettins v. Kelley, 212 Mass 171, 98 N.E. 684. The assurance of safety in McKee v. Tourtellotte, 167 Mass. 69, 44 N.E. 1071, 48 L. R. A. 542, was given by the defendant himself, while in the case at bar it was given by a fellow servant. Fitzsimmons v. Taunton, 160 Mass. 223, 35 N.E. 549, was the case of the caving in of a trench where...