ROSE RENAUD, administratrix, v. NEW YORK, NEW HAVEN, AND HARTFORD RAILROAD COMPANY.

TORT under R. L. c. 111, § 267, as amended by St. 1906, c. 463, Part I. § 63, by the administratrix of the estate of Maxime Renaud to recover damages for the death of the plaintiff's intestate, while a passenger of the defendant, alleged to have been caused by reason of the negligence of the defendant and by the unfitness or gross negligence of its agents or servants. Writ dated November 8, 1906.

In the Superior Court the case was tried before Dana, J. The accident which resulted in the death of the intestate occurred on the premises of the defendant in front of its South Fitchburg station at about 7.08 P. M. on October 26, 1906. The intestate was struck and instantly killed by an express train upon alighting from a local passenger train. South Fitchburg is a flag station about a mile south of the Fitchburg station. In front of the station the tracks run practically north and south for a distance of seven hundred feet in each direction, beyond which the view is cut off by curves. The station building itself is situated on

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the westerly side of the tracks, and between the building and the westerly track is a plank platform about twenty-four feet wide and sixty feet long. The track nearest the station is the south bound track on which the express train which struck the intestate approached. The space between the plank platform and this track is filled with gravel even with the platform. Between the rails of the westerly track planking is laid extending about twenty-five feet north and south in front of the station. The next track is the north bound track on which the local train from which the intestate alighted approached South Fitchburg. The space between the two tracks is filled in with gravel even with the top of the rails. East of the north bound track is a third track leading to a coal shed and used only as a freight siding. A passenger getting off a north bound train has to alight upon the west side and cross the south bound track in order to get to the station. The rule of the defendant, the violation of which was relied upon by the plaintiff as showing gross negligence on the part of the defendant's servants, is quoted in the opinion. There was evidence that the express train was going very fast, and that it did not slacken its speed as it went by the station.

At the close of the evidence, the defendant asked the judge to rule (1) that upon all the evidence the plaintiff could not recover, (2) that there was no evidence of negligence on the part of the defendant, and (3) that there was no evidence of gross negligence on the part of the agents or servants of the defendant. The judge refused to make any of these rulings, and instructed the jury that "in order for the plaintiff to recover he must prove either negligence of the corporation or the gross negligence of the servant or agent, or both," with further instructions which left it open for the jury to find either of these kinds of negligence.

The jury returned a verdict for the plaintiff in the sum of $3,791.66; and the defendant alleged exceptions.

A. J. Young, for the defendant.

D. I. Walsh, for the plaintiff.

Loring, J. One of the rules of the defendant corporation in force at the time of the accident here in question provided that: "No train will pass a station on a double track while another is receiving or discharging passengers (except as may be especially

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provided in time-table), unless fences exist between the tracks." Had this rule been kept by its employees this accident would not have happened.

In leaving to the jury the question of negligence on the part of the corporation the presiding judge did not suggest what could have been done by the defendant corporation beyond what it did. The only thing suggested by the learned counsel for the plaintiff is that there was a violation of R. L. c. 111, § 200. But the posting of a brakeman between every two cars does not insure the presence of one at each end of each car.

Of the thirteen cases relied on by the plaintiff in support of her contention on this point, one only ( Commonwealth v. Coburn, 132 Mass. 555) is a case for a penalty for the death of a passenger or other person. There is nothing in that one (Commonwealth v. Coburn) which helps the plaintiff.

We are of opinion that the evidence did not warrant a finding of negligence on the part of the corporation. The jury were instructed that if they found negligence on the part of the corporation or gross negligence on the part of its servants, they should find for the plaintiff. The verdict was a general one, and may have been based on negligence by the corporation. It follows that there must be a new trial.

The defendant has contended that there was no evidence of gross negligence on the part of the defendant's servants. Gross negligence under the statute [Note p560] means negligence materially greater than the lack of ordinary care. Lanci v. Boston Elevated Railway, 197 Mass. 32. Manning v. Conway, 192 Mass. 122, 125. Brennan v. Standard Oil Co. 187 Mass. 376, 378.

When the injury likely to ensue from failure to do that which ought to be done is a fatal or a very serious one, what otherwise would be a lack of ordinary care may be found to be gross negligence. Hartford v. New York, New Haven, & Hartford Railroad, 184 Mass. 365. Mullins v. New York, New Haven, & Hartford Railroad, 201 Mass. 38. See also Hale v. New York, New Haven, & Hartford Railroad, 190 Mass. 84.

That applies to the case at bar, where the negligence consisted in driving an express train past a station without any slacken-

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ing of speed while a local train was stopping to discharge its passengers.

The difficulty with the argument made by the learned counsel for the defendant on this point is that he assumes that the jury were bound to give credit to the story told by the defendant's engineer as to the care with which he looked for the local train, and to his testimony and that of the fireman that the local train was shut out from view by the smoke settling down. The jury were at liberty to entirely disregard that testimony. See Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314.

Exceptions sustained