Prondecka v. Turners Falls Power & Electric Co.

Crosby, J. These two actions, to recover for the deaths of John Kashinski and Leo Nawrocki, the plaintiff’s intestates, who were drowned on September 13,1919, were tried together. In each case the first count alleges that while the plaintiff’s intestate in the exercise of due care was in the basin of the Connecticut River below the dam of the defendant, the defendant wantonly and recklessly opened the gates to the dam and allowed the same to remain open and its water to rush down and caused the plaintiff’s intestate to be drowned; the second count alleges negligence of the defendant in suffering the waters above its dam to be carried down so as to cause and causing the death of the intestate; the third count is for conscious suffering. — 102 — At the first trial, in July, 1920, at the conclusion of the evidence, the defendant moved in each case that a verdict be directed in its favor; the motion was denied as to the first count subject to the defendant’s exception; and allowed as to the second and third, subject to the plaintiff’s exception as to the second count only; the jury found for the plaintiff on the first count. The cases were before this court (238 Mass. 239), on the defendant’s exceptions, which were sustained. As the circumstances under which the plaintiff’s intestates were drowned are stated in the former opinion, they need not here be repeated. The right to recover for death is under St. 1907, c. 375 (see now G. L. c. 229, § 5), and as the statute creates a right of action for death caused by negligence and upon no other ground, it was held that the plaintiff could not recover upon the first counts. Thereafter the plaintiff in each case was allowed to amend her declaration by substituting a new first count, and at the last trial the presiding judge directed a verdict for the defendant subject to the plaintiff’s exception; the court also refused to permit the second count to be read to the jury by the plaintiff or to permit her to make any claim or offer any evidence in support of these counts, to which refusal she duly excepted. A careful examination of the first counts, as substituted and amended, plainly shows that like the originals they are based upon wanton and reckless conduct of the defendant; and, while not phrased in precisely the same language as they originally were drawn, yet in legal intendment and effect they do not differ. The substituted counts in substance allege that the deaths of the plaintiff’s intestates were caused by the defendant’s wanton and reckless acts. The sole remedy under the statute is based upon negligence. It has been repeatedly held by this court that ordinary and gross negligence differ in kind from wanton and reckless conduct. Prondecka v. Turners Falls Power & Electric Co. supra. Hafey v. Dwight Manuf. Co. 239 Mass. 155, and cases cited. It follows that the plaintiff’s exceptions to the direction of verdicts upon the substituted first counts must be overruled. At the close of the evidence at the first trial, although the plaintiff excepted in each case to the direction of a verdict for the defendant upon the second count, which was for negligence, she filed no bill of exceptions; but as no judgment has been entered on — 103 — the verdict on that count she properly could not have been precluded from reading it to the jury or from claiming that she was entitled thereunder to recover. The rule of res judicata does not apply in these circumstances. The plaintiff, however, was not harmed by the action of the court. It is plain that if the second count had been before the jury there could have been no recovery thereunder, and it would have been the duty of the court so to instruct them. It clearly appears that the decedents were not invitees upon the island, they were at most licensees; the only legal duty which the defendant owed to them either as trespassers or licensees was to abstain from any wilful, wanton or reckless conduct that was likely to injure them. Robbins v. Athol Gas & Electric Co. 236 Mass. 387, and cases cited. Prondecka v. Turners Falls Power & Electric Co. supra, and cases cited. Hafey v. Dwight Manuf. Co. supra. While their deaths are greatly to be deplored, the evidence fails to disclose any act or omission of the defendant which could be found to have been a violation of any legal duty or obligation due them. Hillman v. Boston Elevated Railway, 207 Mass. 478. Robbins v. Athol Gas & Electric Co. supra. Hafey v. Dwight Manuf. Co. supra. It follows that the exceptions of the plaintiff to the direction of verdicts on the amended first counts, and to the refusal of the trial judge to allow the plaintiff to read the second counts or to offer any evidence thereunder, cannot be sustained. Exceptions overruled.