Negligence, Railroad. In actions respectively at common law and under R.L.c. 111, § 267, against a railroad company by the administratrix of the estate of one killed after conscious suffering by a heavy iron machine falling upon him while under the direction of the defendant's freight agent it was being unloaded from the cart of the intestate by the use of skids in an attempt to place it in a car of the defendant, evidence that an employee of the defendant, who was standing in the car holding a rope hitched to the machine with which he was expected to steady it and help to keep it in position, started to jump, dance and whistle and jerk the rope, but when told by an employee of the plaintiff's intestate to "stop" did not repeat these actions, and was pulling upon the rope at the time of the accident, is evidence for the jury of negligence of a servant of the defendant which will support a verdict in the action at common law for the injuries and conscious suffering of the plaintiff's intestate, but is not evidence of gross negligence of a servant of the defendant in the action under the statute and will not sustain a verdict for the plaintiff in such action.
If the driver and proprietor of a tip cart and his employee who is assisting him in transporting a heavy iron machine for shipment by freight on a railroad, by direction of the freight agent of the railroad company, attempt to deliver the machine directly at the freight car, the floor of which is two feet higher than the cart, instead of at the station platform which is on a level with the cart, and, while they are assisting the freight agent and his assistant in moving the machine on skids placed by the freight agent as a bridge from the cart to the car, the machine falls and injures them owing to the negligence of the servant of the railroad company assisting the freight agent, they can be found to have been in the exercise of due care and not to have assumed the risk of such an accident.
The facts, that a freight agent at a railroad station insisted on receiving a heavy iron machine directly into a freight car, the floor of which was two feet higher than the cart in which the machine was brought for delivery, instead of receiving it on the station platform which was of the same level as the cart, and that, as the freight agent and another servant of the railroad company, assisted by the proprietor of the cart and his employee, were attempting to move the machine on rollers upon skids placed by the freight agent as a bridge from the cart to the car, the machine fell and killed the proprietor of the cart after conscious suffering, even if they are evidence of negligence on the part of the freight agent which would sustain a verdict against the railroad company in an action at common law for the injuries and conscious suffering of the deceased, which was not passed upon, are not evidence of negligence of the freight agent greater than a mere want of ordinary care, and will not sustain a verdict against the railroad company in an action brought by the administratrix of the estate of the deceased under R.L.c. 111, § 267, for causing his death.
KNOWLTON, C.J.
These actions were brought to recover damages caused by the falling of a heavy iron machine while it was being moved from the rear end of a two horse cart into a freight car at the defendant's railroad station. The intestate of the plaintiff in the first two actions survived less than an hour after the accident, and died from the effects of it. The plaintiff in the third action was injured, but not very seriously. There was much contradiction between the testimony of the plaintiff Yelkin and that of most of the other witnesses in regard to some of the circumstances preceding and attending the accident. From his testimony the jury might have found that one Cook, who was employed by the defendant in unloading freight at the station, was negligent in starting to jump, dance, and whistle and jerk the rope, while standing in the car holding a rope hitched to the machine with which he was expected to steady the machine and help to keep it in position. Although this testimony was contradicted by the other witnesses, the jury might have believed it, and have found that Cook's negligence was one of the causes of the accident.
This was enough to entitle the plaintiffs to go to the jury in the actions at common law, if there was evidence that Yelkin and the deceased Pearlstein were in the exercise of due care. They were engaged in the performance of their duty, as they understood it, and it cannot be held as matter of law that they were negligent, nor does it appear that they assumed the risk of such an accident. They were not in any relations of contract with the defendant, whereby the defendant was relieved from the duty of seeing that its servants exercised proper care in the work in which they were engaged, and it cannot be said as matter of law that they understood, appreciated and assumed the risk, especially the risk of Cook's negligence, if he was negligent.
It is not necessary to decide whether the jury would have been warranted in finding that Hiller, the freight agent, was negligent in choosing the place in which the machine should be delivered by Pearlstein, and accepted by the defendant, and in directing the manner of its delivery and acceptance. We think the evidence tends to show that these matters were determined by Hiller, and that Pearlstein and Yelkin were acting, in part at least, under his direction in trying to load the machine upon a freight car directly from the cart in which it was brought to the station. If it had been unloaded from the cart upon the platform the accident would have been less likely to happen. As there was evidence of negligence on the part of the defendant's servant Cook, this subject becomes unimportant in the two actions at common law, in which the exceptions must be overruled without reference to Hiller's conduct.
The action brought to recover for the death of Pearlstein stands on different grounds. To recover in this the plaintiff was bound to show negligence on the part of the corporation itself, or unfitness or gross negligence on the part of its servants. There was no evidence to sustain the averment that the corporation was negligent in failing to provide suitable apparatus and appliances for loading its freight, nor was there any evidence to show the unfitness of the defendant's servants for the work in which they were engaged.
We come, therefore, to the question whether there was evidence of gross negligence on the part of these servants. If the jury might have found that Hiller was negligent in attempting to receive the machine for the company upon the car, to which it was to be transferred from the cart by rolling it over the skids, called by some of the witnesses a ladder, there is no evidence that his negligence was greater than a mere want of ordinary care. The jury would not have been warranted in finding gross negligence on his part. There was no evidence of other negligence on the part of any of the defendant's servants, except that of Cook, to which we have referred. The plaintiff Yelkin was the only witness who testified to this, and, if we give full effect to all he said, Cook stopped his objectionable conduct before the accident, when Yelkin said "Stop, John", and did not repeat it. The evidence of this plaintiff, as well as that of the other witnesses, tends to show that Cook held the rope all the time, and was pulling upon it at the time of the accident. The testimony goes no further than to show that probably he did not pull upon it so effectively as he might have done. While the jury might have found that failure on his part to do his work to the best of his ability was one of the causes of the accident, we think they would not have been warranted in finding that he was guilty of gross negligence which caused the machine to fall. The difference in degree between ordinary negligence and gross negligence, recognized or created by the statute, is material, and cannot be ignored in the trial of cases. R.L.c. 111, § 267; c. 171, § 2. Brennan v. Standard Oil Co. 187 Mass. 376, 378. In the action founded on the death of Pearlstein there was no evidence to warrant a submission of the case to the jury, and the result is that in this action the exceptions are sustained. In the other two actions they are overruled.
So ordered.