Pearlstein v. New York, New Haven, & Hartford Railroad Co.

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.