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

• Decision Date: 02 March 1906
• Citation: 191 Mass. 9,77 N.E. 306
• Parties: VECCHIONI v. NEW YORK CENT. & H. R. R. CO. PIERMARINI v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

191 Mass. 9

77 N.E. 306

VECCHIONI

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

PIERMARINI

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1906.

Exceptions from Superior Court, Suffolk County; Daniel W. Bond, Judge.

Actions by one Vecchioni, as administrator, and by one Piermarini, as administrator, against the New York Central & Hudson River Railroad Company. Judgments for plaintiffs, and defendant brings exceptions. Exceptions sustained.

P. O'Loughlin and A. L. Farrell, for plaintiffs.

Woodward Hudson and Geo. P. Furber, for defendant.

SHELDON, J.

These are two actions brought to recover for the death of two trackmen, Sabbationo Ruggero and Antonio Piermarini, who were struck by a regular passenger train on the defendant's railroad while they were at work repairing the track. Both men began work for the defendant on the 1st day of April, 1902, and the accident occurred 9 days later. They were members of a gang of 10 men which worked under the charge of a foreman named Gahan, on a section in Brighton two miles long, which included besides four main tracks all the tracks used in connection with the defendant's shops at Allston, the cattle yards at Brighton, and the Brighton abattoir. There was evidence that during all the time these two men were at work on the tracks, until the day of the accident, Gahan stood near by the men with a time-table and watch, and would tell the men to jump when a train was about due. He directed them where to work and what to do.

On the morning of April 10, Gahan was at work with the gang on track No. 2, between the Everett street and Market street bridges, opposite the end of a paint shop and about 700feet east of the Brighton station. From this point the view westerly under the Market street bridge is unobstructed for about 1,000 feet. There were four main tracks here, and trains ran frequently on all of them, sometimes two trains in a space of two or three minutes. There was evidence that on this morning the atmosphere was close, with a little rain and some fog, and that smoke from the engines hung heavily about the tracks, so as sometimes to obscure the view of the men there. Shortly after 9 o'clock, Gahan called to six men of this gang each by name, and took them away with him to unload a car which was about half a mile distant from the place where they had all been at work up to that time. He left four men, including the two who were afterwards killed, in this place. He gave no directions to the four men he left, and did not tell them where he was going or how long he should be gone; he gave them no instructions, but left them at work on the track. One of the two men killed, Piermarini, started to go with Gahan, but Gahan sent him back; and one of the plaintiffs' witnesses testified that the four men who were left saw Gahan and the six men who were with him go away. There was no direct or circumstantial evidence at variance with this. The four men who were left continued working on this track until the accident happened. Ruggero and Piermarini were struck by an express train from the west, and were both instantly killed. The jury found a verdict for the plaintiff in each case; and the first and main question raised by the defendant's exceptions is whether verdicts should have been ordered for the defendant.

The first case, that brought by Vecchioni, as administrator of the estate of Ruggero, to recover for the death of his intestate, is brought under Rev. Laws, c. 111, § 267. The plaintiff's claim is that Ruggero, if he had lived, would have had a right of action against the defendant because his injury was due to gross negligence on the part of Gahan; that Gahan was intrusted with and exercising superintendence, and that his sole or principal business was superintendence, within the meaning of Rev. Laws, c. 106, § 71, cl. 2; that this negligence of Gahan is to be regarded as negligence of the defendant itself, because the defendant had stationed him to watch for approaching trains and warn the men under his charge, and this fairly implied that when the men were placed at work for the defendant in so dangerous a place, it would take sufficient precaution for their safety; and so that when Gahan left the men unprotected on the tracks this was a failure in the defendant's duty; and that the plaintiff accordingly has a right to maintain this action under the provision of Rev. Laws, c. 111, § 267, that ‘if an employé of a railroad corporation, being in the exercise of due care, is killed under such circumstances as would have entitled him to maintain an action for damages against such corporation if death had not resulted, the corporation shall be liable in the same manner and to the same extent as it would have been if the deceased had not been an employé.’ But the trouble with the plaintiff's argument is that his right of action, by the express terms of the statute last cited, depends upon the right of his intestate to maintain an action under the provisions of Rev. Laws, c. 106, § 71, the employers' liability act; and it is now settled that the latter statu...