Sughrue v. Booth

Decision Date02 January 1919
Citation121 N.E. 432,231 Mass. 538
PartiesSUGHRUE v. BOOTH.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Suffolk County; Wm. F. Dana, Judge.

Action of tort by Michael J. Sughrue, administrator, against Edward S. Booth. Verdict was directed for defendant, and plaintiff excepts. Judgment ordered to be entered for plaintiff pursuant to stipulation.

Jas. J. McCarthy and Maurice Bergman, both of Boston, for plaintiff.

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

LORING, J.

It is in effect conceded by the defendant that the plaintiff's intestate was killed by the negligence of the defendant's servants in unloading the cargo of the steamship Gulfaxe. The defendant has undertaken to uphold the ruling of the presiding judge on the ground that to make out liability for conscious suffering the plaintiff had to prove reckless and wanton misconduct on the part of the defendant's servants and that he had to prove gross negligence to make out liability for death.

At the time in question the Gulfaxe was in the custody of the United States marshal who had appointed the deceased his custodian. The defendant was a stevedore engaged in unloading the cargo of the steamship.

[2] The defendant's contention as to the measure of the defendant's liability for conscious suffering is based on the assumption that the deceased was a licensee. But if the deceased was a licensee of the owner of the Gulfaxe that fact is immaterial in this action against the stevedore. Boutlier v. Malden, 226 Mass. 479, 116 N. E. 251, Ann. Cas. 1918C, 910. Even if the defendant had been the owner of the Gulfaxe and the intestate nothing but a licensee, the duty owed by the defendant in unloading the cargo would have been to use ordinary care. Corrigan v. Union Sugar Refinery, 98 Mass. 577, 96 Am. Dec. 685. The truth is, however, that the defendant owed the intestate the duty of exercising due care in unloading the cargo for the same reason that one traveller on a public way owes another traveller on the way the duty of exercising due care not to injure him. In that case and in the case at bar both persons are rightly where they were. For the reasons stated the decision in Kjaer v. Etier, 222 Fed. 243, 137 C. C. A. 659, has nothing to do with the case at bar.

Since St. 1907, c. 375, amending Rev. Laws, c. 171, § 2, it is only necessary to show ordinary negligence to hold a defendant liable for the...

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20 cases
  • Montellier v. United States
    • United States
    • U.S. District Court — Eastern District of New York
    • February 5, 1962
    ...in an action for death under G.L. c. 229, was bound to prove only ordinary negligence of the defendants Sughrue v. Booth, 231 Mass. 538, 121 N.E. 432 (1919); and not gross negligence of the defendants as would have been required had the action been by the intestate, or by the administratrix......
  • Smith v. August A. Busch Co. of Mass.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 5, 1953
    ...to be rightfully on the premises when the accident occurred. O'Neil v. National Oil Co., 231 Mass. 20, 27, 120 N.E. 107; Sughrue v. Booth, 231 Mass. 538, 121 N.E. 432. The fact that these employees were ignorant of the plaintiff's right to be there did not deprive him of his rights. Howard ......
  • Sarna v. American Bosch Magneto Corp.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 2, 1935
    ... ... The deceased persons were not trespassers as to any rights of ... the defendant. See Sughrue v. Booth, 231 Mass. 538, ... at page 539, 121 N.E. 432; O'Neil v. National Oil ... Co., 231 Mass. 20, at page 27, 120 N.E. 107; Guinn ... v ... ...
  • Urban v. Central Massachusetts Elec. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 2, 1938
    ... ... dangerous instrumentality in the path of another who would be ... likely to encounter it. Sughrue v. Booth, 231 Mass ... 538 ... Brosnan v. Gage, 240 Mass. 113 ... Sarna v ... American Bosch Magneto Corp. 290 Mass. 340 ... The failure ... of the ... ...
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