Tinkham v. Everson

106 N.E. 602, 219 Mass. 164, 1914 Mass. LEXIS 1495

• Court: Massachusetts Supreme Judicial Court
• Decided: October 24, 1914
• Status: Published

Opinion

De Courcy, J.

There was evidence to warrant the jury in finding the following facts: The plaintiff’s intestate, Guistiniano Coppola, and seventeen or eighteen other laborers were ordered by the defendants’ foreman and statutory superintendent to dig at the foot of a gravel bank that was fifteen or sixteen feet high and had an overhang of about eighteen inches. Coppola protested that he never had worked in such a place; but the superintendent said: “Go ahead and go to work. I am here to watch you people.” This superintendent also testified that “his job was to warn the men, to keep them in a safe place.” On the bank, and three feet back from the edge, four men worked with bars, prying off the top. The intestate had been at work for about half an hour when he was struck by a stone or mass of earth that fell, and he died after some hours of conscious suffering. Plainly the issues of his due care and assumption of risk, and that of the negligence of the superintendent, were for the jury. Chiappini v. Fitzgerald, 191 Mass. 598. Gettins v. Kelley, 212 Mass. 171. Polvere v. Hugh Nawn Contracting Co. 215 Mass. 199.

The case went to the jury on the substituted fifth and sixth counts, alleging negligence of.a superintendent, and apparently on the original fourth count alleging a defect in the ways, works and machinery. It is now argued that a verdict for the defendants should have been ordered on the fourth count. But there was no ruling specifically requested as to that count, as in Lynch v. Allyn, 160 Mass. 248. And, as there was evidence to support the other counts, the general request that a verdict be directed for the defendants was refused rightly.

The notice stated the time, place and cause of the injury, as required by R. L. c. 106, § 75, then in force. It was a sufficient basis for the recovery of damages both for injury and death. See Meniz v. Quissett Mill, 216 Mass. 552. Presumably the original fifth and sixth counts relied upon the provisions of R. L. c. 106, § 72, which allowed the legal representative to recover damages for the death in addition to those for the injury. We cannot say, as matter of law, that the amendments allowed by the trial judge introduced a new cause of action and were not warranted. R. L. c. 173, §§ 48, 121. Herlihy v. Little, 200 Mass. 284. Polvere v. Hugh Nawn Contracting Co. 215 Mass. 199.

Exceptions overruled.