Negligence, Gross, Causing death. At the trial of an action of tort under R.L.c. 111, § 267, brought against a corporation operating a railroad by the administrator of one whose death was alleged to have been caused by reason of gross negligence of the defendant's employees, the testimony of one of the plaintiff's witnesses tended to show that the plaintiff's intestate had brought a heavy machine to a freight agent of the defendant for shipment, that the freight agent directed him to load it on to a car, and that he and other employees of the defendant and the witness helped the plaintiff to do so, that one employee of the defendant was inside of the car with a rope attached to the machine upon which he was directed to pull in order to steady the machine as it stood upon rollers or skids running to the car from the wagon from which it was being unloaded, that he started to jump and dance and whistle, and immediately the machine fell. Held, that there was evidence which would warrant the jury in finding that the death of the plaintiff's intestate resulted from gross negligence of an employee of the defendant.
KNOWLTON, C.J.
This case has once before been considered by this court, and it was reported in 192 Mass. 20. The only question now presented which is not covered by the former decision is whether there was evidence to warrant a finding that Cook, one of the defendant's servants, was grossly negligent, and that his negligence caused the accident. Upon the evidence at the first trial it was held that the testimony would warrant a finding that he was negligent, but not a finding that he was grossly negligent. There was much conflict of evidence, and the plaintiff's case on this point rests almost entirely upon the testimony of Yelkin. He said that Cook held the rope, and started dancing and whistling, and jerked the rope. He added: "Just before the machine fell he started to whistle and dance, and jerked the rope. The machine fell right off." He gave this testimony in a variety of forms, in connection with his description and that of others as to how the machine fell. Notwithstanding the contradiction of him, and the seeming improbability of a part of his testimony, which was materially different from that at the former trial as it appears in the bill of exceptions on which the former decision was made, we are of opinion that it was a question for the jury whether Cook was grossly negligent. Hartford v. New York, New Haven, Hartford Railroad, 184 Mass. 365. Evenson v. Lexington Street Railway, 187 Mass. 77. Gordon v. West End Street Railway, 175 Mass. 181.
Exceptions overruled.