Negligence, Employer's liability. Practice, Civil, Exceptions, Amendment. In an action by an administrator of the estate of a laborer to recover for the death and conscious suffering of the plaintiff's intestate when in the employ of the defendant, who was a contractor, there was evidence that the plaintiff's intestate and other laborers were ordered by the defendant's superintendent to dig at the foot of a gravel bank fifteen or sixteen feet high that had an overhang of about eighteen inches, that the plaintiff's intestate protested that he never had worked at such a place, but that the superintendent said to him, "Go ahead and go to work. I am here to watch you people," that it was the duty of this superintendent "to warn the men, to keep them in a safe place," that on the bank three feet back from the edge four men were working with bars, prying off the top, that, when the intestate had been at work for about half an hour, he was struck by a stone or mass of earth that fell from the top of the bank, and died after a period of conscious suffering. Held, that the issues of the due care of the intestate, of his assumption of the risk of injury and of the negligence of the defendant's superintendent were for the jury.
In an action of tort, where the presiding judge refused to order a verdict for the defendant and submitted the case to the jury on three counts and a verdict was returned for the plaintiff, it is not open to the defendant, upon an exception to the judge's refusal to order a verdict for him, to argue that a verdict should have been ordered for him on one of the three counts, if he asked for no special ruling on that count before the verdict and there was evidence warranting a verdict for the plaintiff on one of the other counts on which the case was submitted to the jury.
At the trial of an action by an administrator under R.L.c. 106, § 72, to recover for the conscious suffering and death of the plaintiff's intestate, while in the defendant's employ, alleged to have been caused by the negligence of the defendant's superintendent, the presiding judge under R.L.c. 173, §§ 48, 121, properly may allow the plaintiff after the close of the evidence to amend his declaration by adding allegations that at the time of the intestate's death he had a wife and four minor children who then and when the action was brought were dependent upon his wages for support.
De COURCY, J.
There was evidence to warrant the jury in finding the following facts: The plaintiff's intestate, Guistiniano Coppola, and seventeen or eighteen other laborers were ordered by the defendants' foreman and statutory superintendent to dig at the foot of a gravel bank that was fifteen or sixteen feet high and had an overhang of about eighteen inches. Coppola protested that he never had worked in such a place; but the superintendent said: "Go ahead and go to work. I am here to watch you people." This superintendent also testified that "his job was to warn the men, to keep them in a safe place." On the bank, and three feet back from the edge, four men worked with bars, prying off the top. The intestate had been at work for about half an hour when he was struck by a stone or mass of earth that fell, and he died after some hours of conscious suffering. Plainly the issues of his due care and assumption of risk, and that of the negligence of the superintendent, were for the jury. Chiappini v. Fitzgerald, 191 Mass. 598. Gettins v. Kelley, 212 Mass. 171. Polvere v. Hugh Nawn Contracting Co. 215 Mass. 199.
The case went to the jury on the substituted fifth and sixth counts, alleging negligence of a superintendent, and apparently on the original fourth count alleging a defect in the ways, works and machinery. It is now argued that a verdict for the defendants should have been ordered on the fourth count. But there was no ruling specifically requested as to that count, as in Lynch v. Allyn, 160 Mass. 248. And, as there was evidence to support the other counts, the general request that a verdict be directed for the defendants was refused rightly.
The notice stated the time, place and cause of the injury, as required by R.L.c. 106, § 75, then in force. It was a sufficient basis for the recovery of damages both for injury and death. See Meniz v. Quissett Mill, 216 Mass. 552. Presumably the original fifth and sixth counts relied upon the provisions of R.L.c. 106, § 72, which allowed the legal representative to recover damages for the death in addition to those for the injury. We cannot say, as matter of law, that the amendments allowed by the trial judge introduced a new cause of action and were not warranted. R.L.c. 173, §§ 48, 121. Herlihy v. Little, 200 Mass. 284. Polvere v. Hugh Nawn Contracting Co. 215 Mass. 199.
Exceptions overruled.