Smith v. Thomson-houston Elec. Co.
| Decision Date | 22 June 1905 |
| Citation | 74 N.E. 664,188 Mass. 371 |
| Parties | SMITH v. THOMSON-HOUSTON ELECTRIC CO. (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jas H. Sisk, Wm. E. Sisk, and Richd. L. Sisk, for plaintiff.
Wm. H Niles and H. R. Mayo, for defendant.
These are actions of tort tried together in the superior court, in which the plaintiff, as the widow of George H. Smith, seeks in the first to recover damages for his death, under Rev Laws, c. 106, and in the second, under the same chapter, and at common law, as administratrix, for conscious suffering preceding death, both alleged to have been caused by the negligence of the defendant. Verdicts having been returned in her favor, the defendant brings the cases before us on exceptions to the refusal of the presiding judge to rule 'that as the intestate experienced conscious suffering the first action cannot be maintained by the widow or next of kin, but should have been brought by the administratrix, and that the law does not in any case authorize an action to be brought by a widow for the benefit of herself and the next of kin,' and that upon all the evidence neither action could be maintained. A further exception also was saved to the instructions given to the jury on the measure of damages.
We consider, first, the refusal to order a verdict for the defendant which was asked for upon the ground that the deceased was not in the exercise of due care and there was no evidence of its negligence. If either of those affirmative propositions were not sustained, she cannot recover in either action.
It was either admitted, or not denied by the defendant, that the plaintiff's intestate was injured while employed at its works, and after a short period of consciousness died from his injuries leaving a widow and two minor children, who were dependent upon him for support. There also was no contention that the necessary statutory notice had not been given. At the time of the accident he was working as a switchman, or conductor, on a reversible motor car attached to a flat car loaded with machinery and molds, which were being transported within the yard of the defendant's works. Attached to one end of the motor car was a wooden step extending across its entire width. This step was about 14 inches wide by 1 inch in thickness, and it was supported and held in place by iron brackets raised about 3 inches above the level of the track.
The testimony of the plaintiff tended to show that Smith rode on the front step of the car, which was moving slowly, when he alighted, ran ahead, and threw a switch to open the track over which it was to pass. Having done so, he jumped onto the step as the car passed, which then increased its speed, and after riding a short distance the step broke, throwing him under the wheels, causing the injury from which he died. In the performance of his duties it was understood that he would ride on the car and open the switches. To do this he either would be obliged to stop the car or get off and on while it was moving. There was also evidence from which it might have been found that when injured he was performing his work in the usual way.
The general foreman called by the defendant testified that shortly before the accident, upon observing this method of running the car, he had instructed him to always use the rear step, as using the front step was dangerous, and never to get off while it was in motion, with the further admonition that if the practice was repeated he would be discharged.
But the plaintiff contended that this and other similar testimony that the deceased was improperly on the front step should be disregarded by the jury, who were not bound to accept it ( Tyler v. New York Railroad Co., 137 Mass. 238; Aiken v. Holyoke Street Railway Co., 180 Mass. 8, 12, 61 N.E. 557); or, if taken as true, that her intestate was not required to take the safest possible course, and if he did not they still could find that under the circumstances he exercised ordinary care (Houlihan v. Connecticut River Railroad Co., 164 Mass. 555, 556, 42 N.E. 108). The danger against which he had been warned was that in using the front instead of the rear step there was danger of falling under the moving car, while the defendant's witnesses who observed the accident testified that Smith in jumping either missed the step, or, if he reached it, his feet slipped, causing him to fall. Upon the plaintiff's evidence he was placed safely on the step, and whatever danger there was in getting on had passed. If so, then the efficient cause of what happened was not his conduct, even if negligent in boarding a moving car, but arose from the breaking of the step.
We not come to the question of the defendant's negligence. The strain to which the step was subjected would be the same whenever used for the purpose for which it was designed, and the defendant's duty required that it should be of sufficient strength and kept in suitable repair. Murphy v. Marston Coal Co., 183 Mass. 385, 67 N.E. 342. On this issue the plaintiff's evidence was to the effect that the board forming the step, which was examined immediately after the car stopped, had an old split where it broke, and had become worn through and chipped from use. This furnished proof from which the jury could say that it was insufficient and hence a defective appliance. They further could find that the defendant by using due diligence should have known of its condition. Murphy v. Marston Coal Co., ubi supra. It is true that the defendant's evidence was to the contrary, and, if believed, the board was bright at the split except a slight weather check, and the step had been broken by coming in contact with the body of Smith as the car passed over him. Plainly, the evidence on both these issues could not be reconciled. Being conflicting, the due care of the deceased and the negligence of the defendant, therefore, were questions not of law, but of fact, which were submitted to the jury under instructions to which no exceptions were taken, and within whose...
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