Dimauro v. Linwood Street Railway Co.

Loring, J. We are of opinion that the evidence did not warrant a finding of gross negligence on the part of the defendant’s servants. In view of the argument made in the case at bar we repeat what has been decided: First. It was decided in Banks v. Braman, 188 Mass. 367, that gross negligence under R. L. c. 111, § 267, is not the same thing as a wanton act which dispenses with proof by a plaintiff of the fact that his negligence was not a contributory cause of the accident. See in this connection Lanci v. Boston Elevated Railway, 197 Mass. 32, 35, and a note to Dolphin v. Worcester Consolidated Street Railway, 189 Mass. 270, 273, and a note to Fitzmaurice v. New York, New Haven, & Hartford Railroad, 192 Mass. 159, 162. Second. Gross negligence as distinguished from ordinary negligence was created by the act under which this action was brought, (R. L. c. 111, § 267,) and exists by force of the provisions of that statute. See [149] Dolphin v. Worcester Consolidated Street Railway, 189 Mass. 270, 273. Third. In Dolphin v. Worcester Consolidated Street Railway, ubi supra, where the degree of care due was the highest degree of care, the defendant being a carrier and the plaintiff one of its passengers, it was held by the court that gross negligence means a gross failure to exercise the highest degree of care. Where the duty owed by the defendant is to exercise ordinary care, gross negligence has been defined to be “ a materially greater degree of negligence than the lack of ordinary care.” See Brennan v. Standard Oil Co. 187 Mass. 376, 378 ; Manning v. Conway, 192 Mass. 122, 125; Lanci v. Boston Elevated Railway, 197 Mass. 32. In such a case gross negligence may also be-defined to be a failure to exercise a slight degree of care. The evidence introduced by the plaintiff showed that his intestate, one Paciello by name, was killed by a car of the defendant under the following circumstances. He was a member of a gang of some twenty-five to thirty Italians engaged in digging a trench for sewer pipes. This trench was in a public way between Linwood, a station on a steam railroad, and the town-of Whitinsville. In this same public way the tracks of the defendant were laid. On the day in question a heap of gravel and cobble stones, some three feet high in the middle of the heap, had been made by the dumping of material which came-from the digging of the trench. Several teams had dumped loads' at this place before the team in question came there to dump Reload. The method of dumping had been for the successive teams to drive up on to the gravel previously dumped, and then dump-its load. The plaintiff’s intestate and another Italian, Delgrosso1 by name, were digging in the trench when the team in question drove up on to the heap of gravel. It was a four wheel dump cart. Paciello and Delgrosso left the trench to help dump this load of gravel. The horses and cart had come to a stop parallel to the defendant’s track, with the tracks on the left of the team as the team stood facing Linwood. Rosetti, the foreman of the gang, stood at the front of the team, prying up the forward end of the dump cart with an iron bar. Paciello and Delgrosso were at the back of the cart, one on each side of it, bearing down on that end to help dump the gravel. Rosetti testified that he saw the defendant’s car when it was [150] one hundred feet away, and that he then called out for it to stop. Seeing that there was no change in its speed, he signalled it to stop by raising his hand, but the car continued to come on at the same rate of speed. He also testified that the motorman was looking in his direction all the time. It was proved that the defendant had issued an order, properly posted, that cars “ should not run exceeding four miles an hour by the sewer construction.” In addition there was evidence from an expert as to a hypothetical case, covering what the jury were warranted in finding to be the facts in the case at bar, that a motorman with a slack brake chain ought to have been able to stop the car running four miles an hour within twenty feet, and at five miles an hour within twenty-seven feet. The only testimony as to the speed at which the defendant’s car was running, in addition to what has been stated, came from Delgrosso, who said that the car was coming all the time at the same rate of speed ; “in a hurry ; fast.” This warranted a finding that the defendant’s car was going faster than five miles an hour. That fact, in connection with the defendant’s rule that its cars should not run over four miles an hour while going by sewer construction, would have warranted a finding that the motorman was negligent within the rule established in Stevens v. Boston Elevated Railway, 184 Mass. 476. The evidence put the hub of the rear wheel of the dump cart “ about three to four feet from the track,” and the overhang of the defendant’s car at ten to twelve inches. This left a clearance of two to three feet between the hub of the wheel and the defendant’s car. Paciello was on the side of the dump cart facing toward Lin wood, that is to say, with his back toward Whitinsville, where the car in question was coming from. He was bending over, bearing down on the end of the cart (as we have said) when Rosetti the foreman called out to him, “ guarda tevo per carra,” or “ guarde tevo del carra,” which being translated means “ look out for the car ” or “ look out for the cart.” Thereupon Paciello straightened up, looked round over his right shoulder, and in doing so brought his body over the line of the outside of the defendant’s car, was struck on the hip, rolled over [151] and was killed by the rear wheels. Rosetti’s exact words were: “ He moved his body or the car would not have touched him.” The distance from the place where Paciello was struck to the place where he lay dead was from eight to ten feet, and the back end of the car, when it came to a stop, was ten to twelve feet from the body of Paciello where it lay dead. The car was twenty-eight feet long, so that from the place where Paciello was struck to the place where the front of the car, the part which struck him, stopped was about fifty feet. The question here is whether this evidence warranted a finding of gross negligence on the part of the motorman, and we are of opinion that it did not. It is true that the jury were warranted in finding that the motorman saw or ought to have seen Paciello. But it is also true that there was a clearance of two to three feet between the hub of the wheel and the motorman’s car, and that Paciello would not have been hurt if he had stayed where he was and not swung himself out into the line of the side of the car just as the car reached him. To run a car at something over five miles an hour under these circumstances is not, in our opinion, evidence of gross negligence. The plaintiff’s counsel contended that the evidence in the case at bar was stronger than that in the following cases: Commonwealth v. Vermont & Massachusetts Railway, 108 Mass. 7; Tilton v. Boston & Albany Railroad, 169 Mass. 253; Young v. New York, New Haven, & Hartford Railroad, 171 Mass. 33; Walsh v. Boston & Maine Railroad, 171 Mass. 52, 56; Lutolf v. United Electric Light Co. 184 Mass. 53, 58; Hartford v. New York, New Haven, & Hartford Railroad, 184 Mass. 365; Hale v. New York, New Haven, & Hartford Railroad, 190 Mass. 84. We have examined these cases and find that they do not support that contention. Exceptions overruled.