Practice, Civil, Verdict. Negligence. Railroad. In an action by an administrator against a railroad corporation under R.L.c. 111, § 267, as amended by St. 1906, c. 463, Part I. § 63, to recover damages for the death of the plaintiff's intestate, while a passenger of the defendant, alleged to have been caused by the negligence of the defendant and by the unfitness or gross negligence of its agents or servants, there was evidence for the jury of gross negligence on the part of the servants of the defendant, but there was no evidence of negligence on the part of the defendant itself. The presiding judge refused to instruct the jury that there was no evidence of negligence on the part of the defendant as distinguished from its servants, and instructed them that if they found negligence on the part of the corporation or gross negligence on the part of its servants they should find for the plaintiff. The jury returned a general verdict for the plaintiff, and exceptions were alleged by the defendant. Held, that the exceptions must be sustained and there must be a new trial, because the instruction which was refused should have been given, and under the instruction given the general verdict might have been based on supposed negligence of the corporation.
In an action by an administrator against a railroad corporation under R.L.c. 111, § 267, as amended by St. 1906, c. 463, Part I. § 63, to recover damages for the death of the plaintiff's intestate, which occurred before the amendment of the statute by St. 1907, c. 392, while the intestate was a passenger of the defendant, and was alleged to have been caused by the negligence of the defendant or the gross negligence of its servants, "gross negligence" means negligence materially greater than the lack of ordinary care.
In an action by an administrator against a railroad corporation under R.L.c. 111, § 267, as amended by St. 1906, c. 463, Part I. § 63, if it is shown that a rule of the defendant in force at the time of the accident required that no train should pass a station on a double track while another was receiving or discharging passengers (except as might be especially provided in time-table) unless fences existed between the tracks, that the plaintiff's intestate was a passenger on a local train of the defendant and that on alighting in front of the station of the defendant at his place of destination he was struck and instantly killed by an express train of the defendant, which was coming on a parallel track from the opposite direction from that in which he had been travelling and which ran past the station without any slackening of speed, there is evidence for the jury of gross negligence on the part of the servants of the defendant.
LORING, J.
One of the rules of the defendant corporation in force at the time of the accident here in question provided that: "No train will pass a station on a double track while another is receiving or discharging passengers (except as may be especially provided in time-table), unless fences exist between the tracks." Had this rule been kept by its employees this accident would not have happened.
In leaving to the jury the question of negligence on the part of the corporation the presiding judge did not suggest what could have been done by the defendant corporation beyond what it did. The only thing suggested by the learned counsel for the plaintiff is that there was a violation of R.L.c. 111, § 200. But the posting of a brakeman between every two cars does not insure the presence of one at each end of each car.
Of the thirteen cases relied on by the plaintiff in support of her contention on this point, one only (Commonwealth v. Coburn, 132 Mass. 555) is a case for a penalty for the death of a passenger or other person. There is nothing in that one (Commonwealth v. Coburn) which helps the plaintiff.
We are of opinion that the evidence did not warrant a finding of negligence on the part of the corporation. The jury were instructed that if they found negligence on the part of the corporation or gross negligence on the part of its servants, they should find for the plaintiff. The verdict was a general one, and may have been based on negligence by the corporation. It follows that there must be a new trial.
The defendant has contended that there was no evidence of gross negligence on the part of the defendant's servants. Gross negligence under the statute means negligence materially greater than the lack of ordinary care. Lanci v. Boston Elevated Railway, 197 Mass. 32. Manning v. Conway, 192 Mass. 122, 125. Brennan v. Standard Oil Co. 187 Mass. 376, 378.
The word "gross" was stricken from the statute by St. 1907, c. 392.
When the injury likely to ensue from failure to do that which ought to be done is a fatal or a very serious one, what otherwise would be a lack of ordinary care may be found to be gross negligence. Hartford v. New York, New Haven, Hartford Railroad, 184 Mass. 365. Mullins v. New York, New Haven, Hartford Railroad, 201 Mass. 38. See also Hale v. New York, New Haven, Hartford Railroad, 190 Mass. 84.
That applies to the case at bar, where the negligence consisted in driving an express train past a station without any slackening of speed while a local train was stopping to discharge its passengers.
The difficulty with the argument made by the learned counsel for the defendant on this point is that he assumes that the jury were bound to give credit to the story told by the defendant's engineer as to the care with which he looked for the local train, and to his testimony and that of the fireman that the local train was shut out from view by the smoke settling down. The jury were at liberty to entirely disregard that testimony. See Lindenbaum v. New York, New Haven, Hartford Railroad, 197 Mass. 314.
Exceptions sustained.