Gay v. Essex Electric Street Railway Co. , 159 Mass. 242 ( 1893 )

Morton, J.

The only difference between this and the preceding case is that that is a suit at common law, and this is brought under St. 1886, c. 140. Except so far as it contains averments rendered necessary by the fact that it is brought under that statute, the essential allegations contained in the declaration as amended in this case are the same as those contained in the amended declaration in the preceding case. It is necessary to consider, therefore, only the allegations which are peculiar to this case. These are that the plaintiff’s “ intestate lost his life by reason of the negligence and carelessness of the defendant in the operation of its street railway, and of the unfitness and gross negligence and carelessness of its servants and agents while engaged in its business.” In this case we must, as in the preceding case, take the declaration as a whole, and, looking at it in that way, there is nothing tending to show unfitness or gross negligence and carelessness on the part of the servants or agents of the defendant. Commonwealth v. Boston & Maine Railroad, 133 Mass. 383. Peaslee v. Fitchburg Railroad, 152 Mass. 155. If there is anything tending to show negligence or carelessness on the part of the defendant itself (which we do not intimate), then the conduct of the plaintiff’s intestate must be regarded as a contributing cause, and the plaintiff cannot recover. Gay v. Essex Electric Street Railway, ante, 238.

Judgment affirmed.