MILDRED J. LANE, administratrix, vs. ROBERT W. MESERVE & another, [Note 1] trustees.

DREBEN, J. The defendant appeals from a judgment entered on a jury verdict awarding $200,000 damages to the plaintiff pursuant to G. L. c. 229, Section 2 (see note 5, infra), on account of the death of Kevin Lane (Lane), the plaintiff's decedent. We reverse because there was error in the judge's charge.

Lane, a nineteen year old student, died when he fell beneath the wheels of a passenger train operated by the defendant as Lane was attempting to reboard the train as it left the Montserrat Street station in Beverly. He had taken the train at Boston after attending a rock concert. Because of his behavior [Note 2] he had been ejected from the train at the Montserrat Street station, as had two other persons.

1. Claim of insufficient evidence. The defendant argues that the jury were presented with "a single theory of liability -- employees of the [defendant] intentionally prevented Lane from reboarding the train" and that there was no evidence to support that claim. A majority of the panel disagrees with this contention.

The two other persons removed from the train, Scott Silva and Walter White, were witnesses called by the plaintiff at trial. Silva testified that a man with a blue uniform "grabbed me by [the] hair and threw me down the stairs," that White had also been thrown off, and that "another kid [Kevin Lane] got thrown off" at the other end of the train. Silva and White "yelled to Kevin to come on. We were going to try to get back on." Lane caught up and "got in between me and Walter . . . . Walter jumped on, climbed the stairs, and he got on . . . . [Kevin was] [r]ight behind him . . . . Then I saw Kevin grab

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onto the handle as you go up the stairs. The next thing you know, his hand had come off and he went between the train." [Note 3]

White testified that he "was grabbed by the back of the hair and escorted off the train." Thereafter, he, Silva and Lane decided that they would try to reboard the train. As the train started to pull away, the three started running. Silva and Lane were behind White. White jumped aboard. He "could see the conductors coming through the door . . . . [T]hey were going to try and stop me to get on [sic], and I pushed my way through . . . . [T]hey were going to try to push me off, but I just pushed my way right through them."

White's testimony that the defendant's employees attempted to prevent him and, by reasonable inference, Lane, from reboarding the train was reinforced by a security officer who was one of the defendant's witnesses. He testified that he had seen Lane looking "as though he were going to board the train again," and had told him "don't bother, don't try it."

No witness saw any employee of the defendant do anything to prevent Lane from reboarding the moving train, obviously a dangerous attempt in any circumstance. A jury could have found that Lane merely slipped and fell or lost his grip on some part of a car as the train gained speed. That, however, is not the only permissible inference. We conclude, as did the trial judge in ruling on the defendant's motion for a directed verdict, [Note 4] that the evidence, looked at in the light most favorable to the plaintiff, was sufficient. A jury could have inferred that the conductors who had tried to prevent White from reboarding

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also had attempted to stop Lane and thereby had caused his fall. [Note Star]

2. Error in the charge. The judge instructed the jury on negligence, gross negligence, and wilful, wanton and reckless conduct. All these terms are used in G. L. c. 229, Section 2, which is set forth in relevant part in the margin. [Note 5] The judge's initial instructions did not include a discussion of Lane's negligence but only informed the jury of the consequences of the defendant's

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conduct. After the judge had completed his charge, the defendant, at a bench conference, noted that the judge had failed to instruct the jury on comparative negligence and requested that the jury be informed that, if they should find that both Lane and the defendant had been negligent, they were to compare the percentage of Lane's negligence with the negligence or gross negligence, if any, of the defendant.

The judge properly charged the jury as to comparative negligence in the event that they should find both Lane and the defendant negligent. If, however, they should find the railroad guilty of gross negligence or wilful and wanton conduct, they were not to take into account Lane's negligence. The judge said, "Gross negligence or . . . wilful, wanton misconduct offsets any negligence that may be attributed to the plaintiff in this case."

In the circumstances, we consider it error to have charged the jury that they were not to consider Lane's negligence if they should find the defendant grossly negligent. [Note 6] Under G. L. c. 229, Section 2, see note 5, supra, the only relevance of a finding of gross negligence is that such a determination authorizes the jury to award punitive damages. The judge, however, did not make clear to the jury that gross negligence was pertinent only for that purpose. [Note 7]

He read them portions of G. L. c. 229, Section 2, and instructed them that there were three different categories of conduct, negligence, gross negligence, and wilful, wanton and reckless conduct. Each was explained, and the jury were told that if they should find any of the three and that such conduct was the proximate cause of Lane's death, the defendant would be liable in damages. "Gross negligence" was defined as a "greater degree of negligence, . . . an act or an omission of a legal duty of an aggravated character as distinguished from a mere

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failure to exercise ordinary care." [Note 8] The judge also pointed out that while gross negligence is different in degree from negligence, wilful, wanton and reckless conduct is different in kind.

Had the jury been instructed that, if they should find the defendant grossly negligent, they were not to take Lane's negligence into account in assessing punitive damages, the instruction would have been proper. The comparative negligence statute, G. L. c. 231, Section 85, [Note 9] refers only to "damages for negligence," and we construe the statutory language as meaning compensatory damages only. Lane's comparative negligence, if any, would not, therefore, reduce an exemplary award. As pointed out in Tampa Elec. Co. v. Stone & Webster Engr. Corp., 367 F. Supp. 27, 38 (M.D. Fla. 1973) (construing Florida law), "This procedure will equitably divide responsibility for claimed losses while keeping intact the policy" of permitting a separate award to punish a grievous wrongdoer. See Amoco Pipeline Co. v. Montgomery, 487 F. Supp. 1268, 1272 (W.D. Okla. 1980) (construing Oklahoma law). See also Schwartz, Comparative Negligence Section 5.4, at 109-111 (1974).

The instruction to disregard Lane's negligence was not, however, limited to the assessment of punitive damages. Where, as here, the jury were permitted to award compensatory damages based on any degree of negligence, including gross negligence, it was error to instruct that they were not to consider Lane's comparative negligence in the event they found the defendant grossly negligent. See Tampa Elec. Co. v. Stone & Webster Engr. Corp., 367 F. Supp. at 38.

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Prior to the amendment of G. L. c. 231, Section 85, to provide for comparative negligence, see St. 1969, c. 761, Section 1, contributory negligence was an affirmative defense to actions based on gross negligence. See Altman v. Aronson, 231 Mass. 588, 592 (1919); Dinardi v. Herook, 328 Mass. 572, 575-576 (1952). There is nothing in the comparative negligence statute to indicate an intent to change prior law so as to eliminate consideration of the plaintiff's negligence in cases involving a greater degree of negligence, that is, gross negligence. Rather, the statute suggests that a jury need no longer be concerned with the point at which ordinary negligence becomes gross negligence but are directed to compare the negligence of the parties, whatever the degree of the defendant's negligence. See Tampa Elec. Co. v. Stone & Webster Engr. Corp., 367 F. Supp. at 38 (construing Florida law); Draney v. Bachman, 138 N.J. Super. 503, 506-514 (1976); Bielski v. Schulze, 16 Wis. 2d 1, 14-19 (1962); Danculovich v. Brown, 593 P.2d 187, 192-193 (Wyo. 1979). But see Ryan v. Foster & Marshall, Inc., 556 F.2d 460, 465 (9th Cir. 1977) (construing Oregon law), and compare with Johnson v. Tilden, 378 Or. 11, 17 (1977).

Since the jury may have found for the plaintiff on the basis of gross negligence on the part of the defendant's employees (one of the three categories of conduct resulting in liability contained in the judge's charge), we reverse. [Note 10]

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3. Expert testimony. We also discuss the question of the admissibility of the testimony of the plaintiff's expert as it may arise on retrial. General Laws c. 229, Section 2, see note 5, supra, provides that compensatory damages in a death action shall be in the amount of "the fair monetary value of the decedent" to the persons entitled to receive the damages, including the "loss of the reasonably expected net income" to such persons.

An economist, an expert witness for the plaintiff, testified that he estimated Lane's "expected lifetime net income" (based on Lane's projected earnings as a cook less his personal expenses) to be $476,000. The defendant moved that the testimony be struck on the ground that this figure was not material to the amount called for by the statute, i.e., the pecuniary loss to his parents. It is claimed that the amount is too high, both because it is based on Lane's lifetime rather than on the shorter projected lifespan of Lane's parents and because it is not limited to the portion of Lane's income which would have gone to his parents. We think that, with appropriate explanation of their limited relevance, a judge, in his discretion, might determine that figures of projected income (less expenses) for a period of the common lifetime(s) of the decedent and of his beneficiaries would aid the jury. See Simon v. Solomon, 385 Mass. 91, 105 (1982). Information as to the decedent's future prospects has some relevance to the amount he is likely to contribute to his parents. The discretion of a trial judge to admit similar evidence has been upheld elsewhere. See Meissner v. Smith, 94 Idaho 563, 570 (1972); Heppner v. Atchison, T. & S. Fe Ry., 297 S.W.2d 497, 507 (Mo. 1956). Caution, however, must be used in admitting such evidence, and the testimony should be linked as closely as possible to the statutory elements. For example, any figures in this case should be limited to the common life expectancies of Lane and his beneficiaries. A bare statement of Lane's projected earnings without an explanation would be improper. See Bartkowiak v. St. Adalbert's Roman Catholic Church Soc., 40 A.D.2d 306, 311 (N.Y. 1973).

We recognize that there is substantial authority for excluding calculations of projected earnings unrelated to contributions to

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the household. See Wetherbee v. Elgin, Joliet & Eastern Ry., 191 F.2d 302, 311 (7th Cir. 1951), cert. denied 346 U.S. 867 (1953); Mullins v. Seals, 562 F.2d 326, 328-329 (4th Cir. 1977) (construing Virginia law); Riksem v. Hollister, 96 Idaho 15, 16 (1974). See also Allendorf v. Elgin, Joliet & Eastern Ry., 8 Ill. 2d 164, 173, 177-178, cert. denied, 352 U.S. 833 (1956) (suggesting that an expert, instead of estimating the projected earnings of a decedent, should give the jury a formula for calculating lost contributions and should use neutral figures, e.g., the value of $1 per month payable at the end of each month for periods of ten, twenty, or thirty years).

We decline, however, to adopt a blanket rule of exclusion. The amount of damages to be awarded in this kind of case is, to a large extent, dependent on probabilities, and many contingencies enter into the calculation. See Cross v. Sharaffa, 281 Mass. 329, 330-332 (1933). It seems preferable to leave to the judge discretion to admit expert testimony of Lane's future prospects during the relevant period if he or she deems it helpful to the jury. The defendant must, however, be afforded the opportunity of full cross-examination, and the charge should contain careful explanatory instructions.

4. Other questions raised by the defendant are unlikely to arise at retrial. We note that it will be incumbent on the plaintiff to show, prior to the introduction of any admissions against the defendant, that they are properly attributable to it.

For the reasons set forth in part 2 hereof, the judgment is reversed, and the case is remanded to the Superior Court for a new trial.

So ordered.