Prondecka v. Turners Falls Power & Elec. Co.

• Decision Date: 21 March 1921
• Parties: PRONDECKA v. TURNERS FALLS POWER & ELECTRIC CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 239

130 N.E. 386

PRONDECKA

v.TURNERS FALLS POWER & ELECTRIC CO. (two cases).

Supreme Judicial Court of Massachusetts, Franklin.

March 21, 1921.

Exceptions from Superior Court, Franklin County; Richard J. Irwin, Judge.

Actions by Czestawa Prondecka, administratrix, against the Turners Falls Power & Electric Company. Verdicts for plaintiff, and defendant excepts. Exceptions sustained.

Henry J. Field, of Greenfield, for plaintiff.

Joseph B. Ely, William C. Giles, and W. A. McDonough, all of Springfield, for defendant.

JENNEY, J.

These are two actions of tort in which recovery is sought because of the deaths of John Kashinski and Leo Nawrocki, the plaintiff's intestates, who were drowned on September 13, 1919, in the Connecticut River a little below the dam at Turners Falls. In the morning of that day, Kashinski and Nawrocki went fishing in the river, below the dam which withheld a large body of water from the natural flow of the stream. After they had been fishing for some considerable time, one of two boys who had accompanied them noticed that the water was rising; by reason of its rising they were drowned. Nawrocki lost his life in attempting to get upon a rock which projected above the water, and Kashinski while endeavoring to cross the stream, apparently to aid one of his companions. The rising water was caused by the opening of gates in the dam to relieve the pond because of a condition threatening an excessive flow of water. The defendant owned the bed and banks of the stream below the dam, and there was evidence that it had posted and thereafter maintained signs forbidding trespassing thereon, but some witnesses testified that they never had seen the signs. The evidence was conflicting, but it warranted a finding that the locality had been used quite frequently for fishing both before and after the signs had been put up.

The declarations were in three counts. The first counts allege that, while the intestates were in the exercise of due care and in the basin of the Connecticut River below the dam of the defendant, the ‘defendant did, by its agents or servants, with utter disregard for the lives and safety of the plaintiff's intestate [s] * * * wantonly and recklessly open the gates to said dam and allow the same to remain open and its waters to rush down thereby exposing those in said basin to great bodily, injury and did cause the plaintiff's intestate[s] to be drowned.’ The second counts were based on the negligence of the defendant's employees in suffering ‘the waters above its dam to be carried down as aforesaid so as to cause and casing the death’ of the intestates; while the third counts were for conscious suffering caused by the negligence charged in the second count.

At the close of the evidence, the defendant moved in each case for the direction of a verdict in its favor. The motion was denied as to the first counts, subject to the defendant's exceptions, and allowed as to the second and third counts, subject to the plaintiff's exceptions as to the second counts only. The jury found for the plaintiff in each case. As no bills of exceptions have been filed by the plaintiff, the correctness of the ruling as to the second counts cannot be considered.

It is unnecessary to state or consider the evidence bearing upon the neglect for which the defendant was responsible; and it is assumed for the purpose of the decision that the issue of due care of the intestates was properly submitted to the jury. Upon the counts submitted, the plaintiff cannot recover except upon proof of such conduct as entitles a trespasser or licensee to prevail.

In each case the defendant also requested the court to rule: ‘On all the evidence you must find that the plaintiff's intestate was a trespasser,’ and excepted to the refusal of the court of give the instruction. This exception, however, is of no importance. In the course of the charge to the jury, the judge said:

‘I will rule as matter of law and I have told the jury, that the people were not invited there and that they were suffered to be there. I told Mr. Ely [attorney for the defendant] yesterday that is what I should say and he seemed to be satisfied, that they were not invitees, so to speak, but they were trespassers or licensees towards whom the defendant owed only the duty to refrain from willfully injuring them. That is the plaintiff's case; that is the first count in the declaration.’

No exception was taken by the plaintiff to this ruling and it became the law of the case. It is, however, proper to say that the evidence disclosed no invitation or inducement to the plaintiff's intestates to use the defendant's premises. At most there was a passive acquiescence in the use. The intestates had no higher standing than that of licensees. Hillman v. Boston Elevated Ry., 207 Mass. 478, 93 N. E. 653,32 L. R. A. (N. S.) 198; and cases there collected; Cole v. Willcutt & Sons Co., 214 Mass. 453, 101 N. E. 995;Laporta v. New York Central R. R., 224 Mass. 100,122 N. E. 643;Doherty v. New York, New Haven & Hartford R. R., 229 Mass. 135, 118 N. E. 281;Robbins v. Athol Gas & Electric Co., 236 Mass. 387,128 N. E. 417.

The plaintiff's right of recovery is wholly under St. 1907, c. 375 (now G. L. c. 229, § 5), and hence is restricted to the relief therein afforded. The statute creates a right of action for death caused by negligence, and fails to give relief where death is caused in any other way.

A land owner is under a duty to one upon his property as a licensee to refrain from any willful, wanton, or reckless conduct likely to injury him. Robbins v. Athol Gas & Electric Light Co., supra; Dillon v. Connecticut River Railroad, 154 Mass. 478, 28 N. E. 899. That is the duty which the plaintiff alleges was not performed. The only count in each case which went to the jury states as a breach of an obligation of the defendant that it did certain acts ‘wantonly and recklessly.’ The declaration is not founded on negligence as such.

It is now settled that negligence and wanton, willful, or reckless conduct are not equivalents. In the recent case of Cotter, Admx. v. Boston Revere Beach & Lynn R. R., 237 Mass. 68, 129 N. E. 426, it was decided that--

‘Under our decisions * * * the difference between negligence, whether ordinary or gross, and conduct which is willful,...