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MEMORANDUM

To: Junior PartnerFrom: Supervising AttorneyDate: July 30, 2009RE: Mickey Sullivan; new client intake

This morning I spoke with a new client, Mickey Sullivan, who has hired us to defend him against criminal charges he faces because he crashed the trolley he was operating while he was texting his girlfriend. Mr. Sullivan has been employed by the MBTA as a trolley operator for the last year. On July 1, 2009 Sullivan was operating one of the trolleys on the Blue Line near Government Center; approximately 60 passengers were on board. When Mr. Sullivan crashed his trolley into the rear of another trolley, 49 of his passengers suffered serious injuries. In addition, the crash caused more than 9 million in damages to MBTA equipment.

Mr. Sullivan admitted that he was texting his girlfriend as he travelled nearly 600 feet through a tunnel, and he admitted that he ran both a yellow and red light. He said that when he looked up from his cell phone, he was within ten feet of the trolley in front of him. He said he couldn’t stop the trolley in time to prevent the crash.

The District Attorney has sought a grand jury indictment under a 100-year-old statute; the DA seeks to show that Sullivan operated the train in a grossly negligent manner.

I have attached the statute and cases interpreting the statute for you to analyze. I would like to file a motion to dismiss the charges on Sullivan’s behalf. Using only the attached authorities, please write a detailed memo telling me how likely we are to succeed.

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Massachusetts General Laws Annotated CurrentnessPart I. Administration of the Government (Ch. 1-182)

Title XXII. Corporations (Ch. 155-182) Chapter 160. Railroads (Refs & Annos)

§ 231. Gross negligence of person in control of train; penalty

Whoever, having the management or control of a railroad train while being used for the common carriage of persons, is guilty of gross negligence in or in relation to the management or control thereof, shall be punished by a fine of not more than five thousand dollars or by imprisonment for not more than three years.

Current through Chapter 24 of the 2009 1st Annual Sess.

(c) 2009 Thomson Reuters.

END OF DOCUMENT

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Supreme Judicial Court of Massachusetts, Suffolk.MASON

v.THOMAS.

Jan. 7, 1931.

Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.

Action by Ona D. Mason against M. Madeline Thomas. Verdict for plaintiff, and defendant brings exceptions.

Exceptions sustained, and judgment for defendant.

M. A. Sullivan, of Lawrence, for defendant.

CARROLL, J.

The plaintiff was the defendant's guest in her automobile. She and the defendant sat on the rear seat. Leroy Thomas, a duly licensed chauffer of experience, was the operator. Seated on the front seat with him was one Stanley A. Starratt who was not licensed to operate a motor vehicle. Starratt testified as follows: At the request of the defendant he invited the plaintiff ‘to go for a ride and we went, out in Miss Thomas' car.’At the time of the injury he was taking a lesson ‘under the direction of Leroy Thomas.’At some time before the accident the defenant ‘asked me if I was going to drive and I said ‘No, I don't feel like it.’Afterwards, we got, out of the thicker driving and I said I thought I might drive.'He had driven automobiles ‘perhaps three, four or five times.’There were few ‘cars coming by,’ and a ‘car came from behind going at a very rapid rate; instinctively, being inexperienced, I drew the car to the right as the other car went flying by me. * * * I put my foot on the accelerator * * * and went to put my foot on the brake, I thought I did. * * * I looked ahead and saw a tree. * * * Just at that instant Mr. Thomas reached and put his hand on the wheel.’The car turned very rapidly ‘three quarters of the way round,’ and tipped over.

The defendant knew that Starratt was an inexperienced driver. The plaintiff testified, ‘As we were going toward the left, I saw Mr. Thomas reach for the wheel and then the car turned over and I don't remember anything else.’There was a verdict for the plaintiff.

[1] There seems to have been no substantial disagreement about the facts. The plaintiff was a guest, of the defendant.*61 She can recover if the defendant was guilty of gross negligence. Thomas, the operator of the car, was a man of experience and duly licensed. He was teaching Starratt to drive. Starratt, while driving on a cement road, with little traffic, became confused when a car went by them, and instead of stepping on the brake, as he intended to do, stepped on the accelerator and before Thomas could render any assistance, the automobile went to the right, and turned over.

It was not gross negligence on the part of the defendant to permit Starratt to drive the automobile when riding with Thomas. G. L. c. 90, § 10, as amended by St. 1923, c. 464, § 4, while it, prohibits the operation of a motor vehicle by one who is not licensed, provides that ‘this section shall not prevent the operation of motor vehicles by unlicensed persons if riding with or accompanied by a licensed operator.’A person can

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**218 be taught to operate an automobile on the public highway when accompanied by a driver who is licensed, and the owner of the automobile is not guilty of gross negligence who permits this to be done, especially upon ‘a straight concrete road about 18 feet wide,’ with little traffic. Even if it be assumed that permitting a person not licensed to operate an automobile when accompanied with a licensed operator might in certain circumstances be found to be a negligent act, upon the facts shown in this record it was not gross negligence to consent to Starratt taking a lesson and operating the motor vehicle when at his side and riding with him was a licensed operator.

[3] Gross negligence is negligence of an aggravated character. It is a substantially greater want of care than that which constitutes ordinary negligence. As was stated in Altman v. Aronson, 231 Mass. 588, 591, 592, 121 N. E. 505, 506, 4 A. L. R. 1185, gross negligence‘is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence.’Applying this standard of gross negligence, there was no evidence that, the defendant* was grossly negligent in consenting to Starratt's driving the car when Thomas, a licensed operator, was sitting by his side and evidently directing him in its operation.

Even if it be assumed upon all the evidence that Starratt was at the time in question the defendant's agent and deriving the machine with her consent, see St. 1928, c. 317, so that his negligence was to be attributed to her, it is not shown that, the defendant is to be charged with gross negligence. The evidence indicates that Starratt, because of his want of experience, became confused and excited. He was confronted with a situation with which he did not know how to deal, in this state of mind he sought to put on the brakes, and in his confusion stepped on the accelerator with the result that the injury happened. Whatever may be said of Starratt's conduct, it was not gross negligence on the part of the defendant. It was not negligence of such an aggravated character as to amount to gross negligence. Burke v. Cook, 246 Mass. 518, 141 N. E. 585; Shriear v. Feigelson, 248 Mass. 432, 143 N. E. 307; Marcienowski v. Sanders, 252 Mass. 65, 147 N. E. 275; Gardner v. Renton (Mass.) 168 N. E. 802.Thomas, acting as he did, was not grossly negligent, even if he should have acted more promptly. It cannot be said that the defendant, by reason of anything done or omitted by Thomas, was guilty of gross negligence. The motion of the defendant for a directed verdict should have been granted.

Exceptions sustained.

Judgment for the defendant.

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Supreme Judicial Court of Massachusetts,Suffolk.

Pablo Candia MONTESv.

MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.Argued Jan. 6, 2006.

Decided March 9, 2006.

Background: Accident victim brought action against Massachusetts Bay Transportation Authority (MBTA) to recover for loss of leg severed by train. The Superior Court Department, Suffolk County, Maria I. Lopez, J., entered judgment on jury verdict for victim. MBTA appealed. The Appeals Court, 63 Mass.App.Ct. 1112, 825 N.E.2d 1080, ordered judgment for MBTA in unpublished opinion. Review was granted.

Holding: The Supreme Judicial Court, Spina, J., held that the motorperson was not reckless. Affirmed and remanded.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, SOSMAN, & CORDY, JJ.

SPINA, J.

*181 A jury returned a special verdict against the defendant, Massachusetts Bay Transportation Authority (MBTA), for reckless conduct stemming from an accident in which one of the defendant's trains severed the lower left leg of the plaintiff, Pablo Candia Montes. The jury could have found that, at the time of the accident, the train was traveling at an excessive rate of speed and that the defendant's motorperson was not paying attention while operating the train. The jury did find, in response to a special question, that the plaintiff was a *182 trespasser at the time of the accident and that the defendant did not know or have reason to know that **613 the plaintiff was helplessly trapped on its property.

In an unpublished opinion under its rule 1:28, the Appeals Court set aside the verdict and ordered judgment for the defendant after concluding that the defendant's motion for judgment notwithstanding the verdict should have been allowed. We granted the plaintiff's application for further appellate review, and now conclude that, as a matter of law, the evidence does not support a finding of reckless conduct and the defendant is entitled to judgment notwithstanding the verdict. Because of our holding, we do not address other issues raised in the defendant's appeal, namely, (1) whether the evidence was sufficient to warrant a finding that the defendant's conduct caused the plaintiff's injuries, (2) whether the award of damages was supported by the evidence, and (3) whether the judge erred by excluding evidence under the psychotherapist-patient privilege (G.L. c. 233, § 20B) and the social worker-client privilege (G.L. c. 112, § 135A) as to how the accident occurred.

[1] 1. The standard of review for the denial of a motion for judgment notwithstanding the verdict is “whether ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the [nonmoving party].’ ” Boothby v. Texon, Inc., 414 Mass. 468, 470, 608 N.E.2d 1028 (1993) , quoting Dobos v. Driscoll, 404 Mass.

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634, 656, 537 N.E.2d 558, cert. denied sub nom. Kehoe v. Dobos, 493 U.S. 850, 110 S.Ct. 149, 107 L.Ed.2d 107 (1989). With this standard in mind, we recite the evidence of reckless conduct in the light most favorable to the plaintiff. See Commonwealth v. Johnson Insulation, 425 Mass. 650, 660, 682 N.E.2d 1323 (1997).

On July 4, 1999, at approximately 1 A.M., the plaintiff was lying on his back between the inbound and outbound railroad tracks at the point where they pass under the Beach Street bridge in Revere. His lower left leg lay across the inside rail of the outbound tracks just north of a switch that was located approximately 107 feet north of the end of the passenger platform to the outbound line at Revere Beach Station. Six-foot chain-link fences with barbed wire along both sides of the tracks from Revere Station to Wonderland Station, and chain link fences *183 about ten feet high along both sides of Beach Street, had been erected to keep unauthorized people away from the tracks in the area. The plaintiff's status as a trespasser and how he came to be on the tracks were disputed issues at trial, but they are not issues on appeal.

An outbound train arrived at Revere Beach Station shortly before 1 A.M. The four-car train was completing its last run of the night. The last stop, Wonderland Station, was approximately one-quarter mile beyond Revere Beach Station. Shortly after 1 A.M., the train left Revere Beach Station and accelerated to twenty-five miles per hour. The posted speed was ten miles per hour. The high beam headlights on the train were about five times brighter than the headlights of an automobile, and illuminated the area under the bridge. The green light on the switch, as well as the switch structure itself, could obstruct a motorperson's view of someone lying just behind the switch. The motorperson, who was sitting in the right front corner of the lead car of the train (above the outside rail) and facing forward, thought he saw something or someone in his peripheral vision to the left between the inbound and outbound tracks as he passed the switch under the Beach Street bridge. He brought the train to a stop at a point where most of the third car had passed the **614 switch.FN1 He told a train inspector who was on the third car that he might have seen someone between the inbound and outbound tracks. The inspector looked out the windows of the train with the aid of a flashlight but saw nothing. He instructed the motorperson to proceed. The train advanced to Wonderland Station.

FN1. The train was approximately 200 feet long. Each car was approximately forty-nine and one-half feet long. The jury could have found that the front of the train stopped about 150 feet beyond the switch.

At approximately 6 A.M. the next morning, the plaintiff was found hobbling alongside the tracks. The point of contact with the train was determined to be just after the switch under the Beach Street bridge, on the Wonderland Station side (north) of the switch. The motorperson testified that he never saw the plaintiff, either at the time of the accident or a few minutes later when he was returning on the inbound tracks to park the train *184 overnight at the car house behind Orient Heights Station.FN2

FN2. Subsequently, the next outbound train, “the last run,” passed the accident site both on the way to Wonderland Station and on the way to the car house behind Orient Heights Station. The motorperson operating that train never saw the plaintiff.

Later that morning, the motorperson was informed about the accident. Fearing that he would lose his job, he telephoned the inspector who was on the train and asked him not to say anything about stopping the train.FN3 The inspector refused, and they both gave statements as to how the incident occurred, including stopping the train because someone or something may have been on the tracks.

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FN3. The defendant's rules and regulations require a train's inspector to “call in” at the time a train makes an unscheduled stop and report the reason for the stop. Here, the inspector was required to report that the motorperson thought he might have seen someone or something between the inbound and outbound tracks.

In addition to offering evidence of the ten mile per hour posted speed limit, the plaintiff offered evidence of various MBTA safety regulations that may have been violated, including:

“The Motorperson must personally operate his/her own train and facing forward, keep a sharp lookout ahead for signals, obstructions and persons on or near the right-of-way...” (emphasis added).

“Motorpersons ... must appreciate the great responsibility for the safety of passengers and property which they assume, and in all cases where there is any question as to what should be done, take the safer course. NEVER TAKE CHANCES ” (emphasis added).

[2] 2. The defendant argues that the evidence is insufficient to warrant a finding that its motorperson operated the train with reckless disregard of the plaintiff's safety, that is, that he acted with knowing or intentional disregard of an unreasonable risk that involved a high degree of probability that death or serious bodily harm would result. See Commonwealth v. Welansky, 316 Mass. 383, 399, 55 N.E.2d 902 (1944) . The plaintiff argues that the evidence supports a finding either that the defendant's motorperson actually saw the plaintiff in time to stop the train but nevertheless *185 proceeded with knowing or intentional disregard of the high probability that the plaintiff would be killed or seriously injured, or that the motorperson “saw [the plaintiff] too late to stop because he was speeding and in flagrant violation of safety rules to face forward keeping a sharp lookout for persons on and/or near the tracks.”

**615 [3] [4] Whether it is alleged as the basis for liability in tort or as guilt of involuntary manslaughter, reckless conduct is measured by the same test. See Sandler v. Commonwealth, 419 Mass. 334, 336 & n. 2, 644 N.E.2d 641 (1995), citing Commonwealth v. Welansky, supra at 397, 55 N.E.2d 902, and Banks v. Braman, 188 Mass. 367, 369, 74 N.E. 594 (1905) . Reckless conduct involves a degree of risk and the voluntary taking of that risk that is so great that, compared with negligent conduct, the difference is not merely one of degree but of kind. See Commonwealth v. Welansky, supra at 399, 55 N.E.2d 902; Restatement (Second) of Torts § 500 comment g (1965). The risk, which involves “death or grave bodily injury[,] must be known or reasonably apparent, and the harm must be a probable consequence of the defendant's election to run that risk or of his failure reasonably to recognize it.” Sandler v. Commonwealth, supra at 336, 644 N.E.2d 641. In the civil context this court has applied the definition of “reckless disregard of safety” in the Restatement (Second) of Torts, supra at § 500:

“The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.”

See Sandler v. Commonwealth, supra at 336 n. 2, 644 N.E.2d 641 .

Here, contrary to the plaintiff's assertion, there is no evidence that the defendant's motorperson saw the

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plaintiff in time to stop the train before striking him. The motorperson testified that he was facing forward and did not see anything on the tracks directly in front of him as he left Revere Beach Station for Wonderland Station. He first noticed someone or something, a *186 dark object between the inbound and outbound tracks, in his peripheral vision to his left as he was passing the switch under the Beach Street bridge. The inspector testified that, after the train stopped, the motorperson told him he might have seen someone between the inbound and outbound tracks. If the jury disbelieved the motorperson's testimony that he did not see the plaintiff, or that he did not see the object that caused him to stop the train until he passed the switch where the plaintiff had been lying, such disbelief is not evidence that the motorperson saw the plaintiff in time to stop the train. See Cruzan v. New York Cent. & Hudson River R.R., 227 Mass. 594, 597, 116 N.E. 879 (1917), writ of error dismissed, 249 U.S. 621, 39 S.Ct. 385, 63 L.Ed. 806 (1919); Feldman v. Feldman, 20 Mass.App.Ct. 309, 312, 480 N.E.2d 45 (1985) . There is no evidence that the motorperson knew that someone was in fact on or near the tracks in the area where the plaintiff was struck, or (because of the fencing) that he had any reason to believe to a high degree of probability that someone was on or near the tracks, in time to stop the train to avoid hitting him. See Manning v. Nobile, 411 Mass. 382, 389, 582 N.E.2d 942 (1991).

The motorperson's request that the inspector not report the stopping of the train because he might lose his job could support an inference that the motorperson thought he might lose his job for actually striking someone he should have seen. However, without more, this evidence is too speculative to support an inference that he actually saw the plaintiff in time to **616 stop the train before hitting him.FN4

FN4. At trial, the plaintiff did not argue that the motorperson actually saw him.

Similarly, there is no evidence that the motorperson was not facing forward. Mere disbelief of his testimony that he had been facing forward is no evidence of the contrary.

[5] There is evidence that the train was traveling at twenty-five miles per hour in a ten mile per hour posted speed zone, and the jury could have inferred that the motorperson was inattentive.FN5 However, that is the extent of the evidence adduced to support the claim of reckless operation. Excessive speed and inattention in these circumstances, without more, do not *187 constitute recklessness. Gage v. Westfield, 26 Mass.App.Ct. 681, 691, 532 N.E.2d 62 (1988). They are more consonant with concepts of negligence and gross negligence. See, e.g., Dinardi v. Herook, 328 Mass. 572, 574, 105 N.E.2d 197 (1952) (discussion of relationship between duration of inattention and level of danger in surrounding circumstances in cases of negligence and gross negligence); Sadak v. Tucker, 310 Mass. 153, 154-156, 37 N.E.2d 495 (1941) (evidence of excessive speed [twenty-five miles per hour] and allowing windshield to become frosted with sleet that restricted driver's vision warranted verdict of negligence for striking child on sled); Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass.App.Ct. 17, 22, 687 N.E.2d 1263 (1997) (question of flagman's inattention during dirt bike race for unspecified period sufficient to go to jury on issue of gross negligence where time was sufficient for three racers to fall on top of fallen racer and for spectators to recognize danger and to yell at flagman to wave warning flag).FN6

FN5. Based on the evidence of intense lighting of the train's headlights, the jury could have inferred that the motorperson should have seen the plaintiff but failed to do so because of inattention.

FN6. Because there is no evidence that the motorperson knew the plaintiff was on or about the tracks, the evidence would not support a verdict, based on negligence, that the defendant knew a trespasser was trapped in a position of peril on its property and violated its duty to exercise

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reasonable care in the circumstances. See Pridgen v. Boston Hous. Auth., 364 Mass. 696, 707, 308 N.E.2d 467 (1974). In any event, the jury's answer to a special question disposed of this issue.

The motorperson's conduct in this case does not meet the standard that we have established for recklessness. The plaintiff has not shown that the risk of death or grave bodily injury to him was known or reasonably apparent to the motorperson, and that the motorperson chose to run the risk rather than alter his conduct or that he failed reasonably to recognize the risk. See Sandler v. Commonwealth, supra at 336, 644 N.E.2d 641; Commonwealth v. Welansky, supra at 398-399, 55 N.E.2d 902. The defendant's motion for judgment notwithstanding the verdict should have been allowed.

The order denying the defendant's motion for judgment notwithstanding the verdict is reversed, and the case is remanded for entry of an order for judgment for the defendant notwithstanding the verdict.

So ordered.

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Supreme Judicial Court of Massachusetts, Middlesex.POOLES

v.BOSTON & MAINE R. R.

Argued Nov. 5, 1951.Decided Dec. 3, 1951.

Action by Marjorie E. Pooles, administratrix, against Boston and Maine Railroad for the death of intestate and for property damage. The Superior Court, C. A. Rome, J., denied defendant's motion to enter verdict for defendant under leave reserved, and defendant excepted. The Supreme Judicial Court, Ronan, J., held that evidence that train traveling at the rate of 60 to 70 miles an hour through open country struck deceased's automobile at a private crossing which afforded deceased a view of 300 yards in direction from which train was approaching, was insufficient to show willful, wanton or reckless conduct on part of railroad necessary for plaintiff to recover for decedent's death.

Exceptions sustained.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING, and COUNIHAN, JJ.

RONAN, Justice.

The plaintiff's intestate was killed and his automobile was demolished when the automobile which he was driving was struck by a train about five o'clock on the afternoon of February 3, 1947, while he was driving in a southerly direction along Phelps Crossing, a private way in Ayer. The train was travelling in a westerly direction. The jury returned verdicts for the death and property damage. The case is here upon the exception of the defendant *166 to the denial of its motion to enter verdicts for it under leave reserved.

Phelps Crossing was a short dead end way which ran in a southerly direction from its junction with a public way across five sets of tracks to some factories located to the south of the railroad. It was situated about seven hundred fifty feet west of the Ayer depot. It was about thirty feet wide **434 near its northerly end where it crossed the tracks. It had been maintained and repaired for many years by the defendant. Planks had been laid next to the railrs and the surface between the tracks consisted of some hard compound. The crossing had been in existence since 1845. It was used by persons going to or coming from the factories, but there was no evidence to show the actual extent of such use. There was evidence that the intestate at the time of the accident was going to one of these factories to apply for work in response to an advertisement for help by a chair company.

The train was running express along the westbound main line or the second most northerly track. It was proceeding at the rate of sixty to seventy miles an hour. It was not scheduled to stop and did not stop at the Ayer depot. There was evidence that, as the train was passing, or just after it passed, the depot, the automobile started to travel slowly over the crossing; that after it passed over the first set of tracks, it seemed to jump suddenly ahead onto the main track and in front of the train; that the engineer applied the brakes as soon as he saw the automobile come upon the crossing but that the train went three quarters of a mile before it stopped.

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[1] The intestate at the time of the accident was using the crossing for his own personal benefit and in furtherance of a purpose in which the defendant had no interest. No express invitation had been extended to him. Neither is there any evidence of any inducement or allurement held out to him by the defendant which would constitute an implied invitation. Photographs of the locus show a typical winding country crossing with a rough, ungraded, gravel road on each *167 side of the railroad location. The appearance of the surface of the space occupied by the tracks flanked on either side by such road was not sufficient to induce one to believe that he was invited to use the crossing. Besides, there was a sign north of the track and west of the crossing which read, ‘railroad crossing, private way, trespassing forbidden,’ although there was evidence that this sign was so badly weatherbeaten that it was hardly legible. Mere passive acquiescence by the defendant in the use made of the crossing by the public was not the equivalent of an implied invitation by the defendant. McCarthy v. Boston and Maine Railroad, 319 Mass. 470, 472, 66 N.E.2d 561, 167 A.L.R. 1250; Couto v. Trustees of New York New Haven & Hartford Railroad Co., 312 Mass. 23, 27, 42 N.E.2d 802.

[2] [3] [4] The intestate might be considered to be an invitee of the chair company in seeking work at its factory in response to its advertisement, Silva v. Henry & Close Co., 279 Mass. 334, 181 N.E. 228; Forgione v. Frankini Construction Co., 308 Mass. 29, 30 N.E.2d 819; but there is lacking any evidence tending to show that the chair company had any right to use the crossing or that any use that it made of the crossing amounted to more than permission. O'Brien v. Boston and Maine Railroad, 325 Mass. 451, 455-456, 91 N.E.2d 218. The rights of the intestate to be upon the crossing arose no higher than those of a licensee, and the plaintiff could not recover without proof of wilful, wanton, or reckless conduct upon the part of the defendant. O'Brien v. Union Freight Railroad Co., 209 Mass. 449, 95 N.E. 861, 36 L.R.A., N.S., 492; Partridge v. United Elastic Corp., 288 Mass. 138, 144, 192 N.E. 460. There was no evidence of such conduct upon the part of the defendant. There was evidence that one approaching from the north, as the intestate was, the westbound main track could see three hundred yards to the east, which was the direction from which the train came when he was sixteen feet from the main track. An engineer may properly assume that a traveller will not attempt to pass in front of a rapidly approaching train in the absence of any indications to the contrary. Tamkun v. Boston and Maine Railroad, 302 Mass. 59, 62, 18 N.E.2d 359; Peterson v. Boston and Maine Railroad, 310 Mass. 45, 54, 36 N.E.2d 701; *168McNally v. Trustees of New York, New Haven & Hartford Railroad, 325 Mass. 367, 370, 90 N.E.2d 318. It has been frequently held that the running of an express train through open country at a rate somewhat similar to that at which the train was travelling in the instant case would not **435 alone constitute negligence. Tamkun v. Boston and Maine Railroad, 302 Mass. 59, 62, 18 N.E.2d 359; Dole v. Boston and Maine Railroad, 308 Mass. 46, 48-49, 30 N.E.2d 832; Follett v. Boston and Maine Railroad, 308 Mass. 553, 557, 33 N.E.2d 269; Southern Pacific Co. v. Stephens, 9 Cir., 24 F.2d 182, 184; Markar v. New York, New Haven & Hartford Railroad Co., 2 Cir., 77 F.2d 282, 283; Constantine v. Pennsylvania Railroad Co., 7 Cir., 114 F.2d 271; Robins v. Pitcairn, 7 Cir., 124 F.2d 734.

In view of the conclusion we have reached we need not consider whether the intestate was contributorily negligent or whether he was proceeding in compliance with G.L.(Ter.Ed.) c. 90, § 15, as amended.

It follows that there was error in the denial of the defendant's motion. The exceptions are sustained and judgments must be entered for the defendant.

So ordered.

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Supreme Judicial Court of Massachusetts, Suffolk.COMMONWEALTH

v.WELANSKY.June 5, 1944.

Barnett Welansky was convicted of manslaughter under two different indictments, and he appeals.

Judgments affirmed.

**904 Appeal from Superior Court, Suffolk County; Hurley, Judge.

Before *383 FIELD, C. J., LUMMUS, QUA, DOLAN, RONAN, and SPAULDING, JJ.*386 F. T. Doyle, Asst. Dist. Atty., and J. K. Collins and A. H. Salisbury, Asst. Dist. Attys., all of Boston, for the Commonwealth.

D. J. Gallagher, H. F. Callahan, E. M. Dangel, A. C. Webber, and T. N. Creed, all of Boston, for defendant.

LUMMUS, Justice.

On November 28, 1942, and for about nine years before that day, a corporation named New Cocoanut Grove, Inc., maintained and operated a ‘night club’ in Boston, having an entrance at 17 Piedmont Street, for the furnishing to the public for compensation of food, drink and entertainment, consisting of orchestra and band music, singing and dancing. It employed about eighty persons. The corporation, its officers and employees, and its business, were completely dominated by the defendant Barnett Welansky, who is called in this opinion simply the defendant, *387 since his codefendants were acquitted by the jury. He owned, and held in his own name or in the names of others, all the capital stock. He leased some of the land on which the corporate business was carried on, and owned the rest, although title was held for him by his sister. He was entitled to, and took, all the profits. Internally, the corporation was operated without regard to corporate forms, as though the business were that of the defendant as an individual. It was not shown that responsibility for the number or condition of safety exits had been delegated by the defendant to any employee or other person.

[1] The defendant was accustomed to spend his evenings at the night club, inspecting the premises and superintending the business. On November 16, 1942, he became suddenly ill, and was carried to a hospital, where he was in bed for three weeks and remained until discharged on December 11, 1942. During his stay at the hospital, although employees visited him there, he did not concern himself with the night club, because, as he testified, he ‘knew it would be all right’ and that ‘the same system * * * [he] had would **905 continue’ during his absence. There is no evidence of any act, omission or condition at the night club on November 28, 1942 (apart from the lighting of a match hereinafter described), that was not within the usual and regular practice during the time before the defendant was taken ill when he was at the night club nearly every evening. While the defendant was at the hospital, his brother James Welansky and an employee named Jacob Goldfine, who were made codefendants, assumed some of the defendant's duties at the night club, but made no change in methods. Under these circumstances the defendant was not entitled to

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a verdict of not guilty on the ground that any acts or omissions on the evening of November 28, 1942, were the transitory and unauthorized acts or omissions of servants or other persons, for which the defendant could not be held criminally responsible. Commonwealth v. Stevens, 153 Mass. 421, 26 N.E. 992, 11 L.R.A. 357, 25 Am.St.Rep. 647; Commonwealth v. Anthony, 306 Mass. 470, 478, 28 N.E.2d 542.

The physical arrangement of the night club on November 28, 1942, as well as on November 16, 1942, when the defendant*388 last had personal knowledge of it, was as follows. The total area of the first or street floor was nine thousand seven hundred sixty-three square feet. Entering the night club through a single revolving door at 17 Piedmont Street, one found himself in a foyer or hall having an area of six hundred six square feet. From the foyer, there was access to small rooms used as toilets, to a powder room and a telephone room, to a small room for the checking of clothing, and to another room with a vestibule about five feet by six feet in size adjoining it, both of which were used as an office in the daytime and for the checking of clothing in the evening. In the front corner of the foyer, to the left, beyond the office, was a passageway leading to a stairway about four feet wide, with fifteen risers. That stairway led down to the Melody Lounge in the basement, which was the only room in the basement open to the public. There were to be found a bar, tables and chairs.

The extreme dimensions of the Melody Lounge were about thirty-six feet by fifty-five feet, and its area was one thousand eight hundred ninety-five square feet. It was separated from a narrow corridor leading to the kitchen (which was located under the main dining room) by a wooden partition. In that partition was a wooden door, two feet and two inches wide, which could have been found to be unmarked. Passing from the Melody Lounge through that door, and thus entering the narrow corridor, one could turn to the left and go to a door which swung inward and could be opened only to a width of eighteen inches, at the top of three steps. That door was barred by a wooden bar that had to be lifted off before the door could be opened at all. On opening that door, one could pass into an outdoor alley about three and one-half feet wide. That alley led to a yard, from which egress could be had through in-swinging doors into another passageway and thence to Shawmut Street.

If, instead, one passing from the Melody Lounge into the narrow corridor should turn to the right, he might pass, as employees were accustomed to do, through a door two and one half feet wide swinging into the corridor from the kitchen. Once in the kitchen, he could traverse that room with all its *389 equipment to the other end of it near Shawmut Street, and then go upstairs and through swinging doors into a corner of the main dining room.

It is evident that in an emergency escape from the Melody Lounge by either of these courses would be difficult for a patron not thoroughly familiar with parts of the premises not ordinarily open to him.

Returning to the foyer, and standing as though one had just entered it by the revolving door, to the right, in the front of the building on Piedmont Street, was a room called the Caricature Bar, with an area of one thousand three hundred ninety-nine square feet, containing two bars, stools and chairs. Toward Shawmut Street, and separated from the Caricature Bar by a railing, was the main dining room, with an area of three thousand seven hundred sixty-five square feet. The foyer opened into both the Caricature Bar and the main dining room. In the main dining room was a dance floor with an area of six hundred sixty square feet, and behind it, in the direction of Broadway, was a stage with an area of four hundred thirty-six square feet.

From the Caricature Bar and from the main dining room one could pass into a corridor near the stage, about four feet wide, up some steps, and through a passageway about seven feet wide into the new Cocktail Lounge, which was first opened on November 17, 1942, and which had an area **906 of seven hundred

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eighty-one square feet. There one found a bar, stools, tables and seats, and also a check room and toilets. In the farther corner of the Cocktail Lounge was a door three feet wide, swinging inward, through which one could enter a small vestibule from which he could go through a pair of doors to Broadway at 59 Broadway.

That pair of doors, and the revolving door at 17 Piedmont Street, were the only entrances and exits intended for the ordinary use of patrons. Besides these doors, and the exit through the wooden partition from the Melody Lounge, already described, there were five possible emergency exits from the night club, all on the first or street floor. These will now be listed and described.

(1)   A door, opening outward to Piedmont Street, two *390 and one-half feet wide, at the head of the stairway leading to and from the basement Melody Lounge. That door apparently was not visible from the greater part of the foyer, for it was in a passageway that ran from one end of the foyer past the office to the stairway. That door was marked ‘Exit’ by an electric sign. It was equipped with a ‘panic’ or ‘crash’ bar, intended to unbolt and open the door upon pressure from within the building. But on the evidence it could have been found that the device just mentioned was regularly made ineffective by having the door locked by a separate lock operated by a key that was kept in a desk in the office. Late in the evening of November 28, 1942, firemen found that door locked and had to force it open with an axe. The jury were entitled to disbelieve the testimony of the defendant that he had instructed the head waiter, who died in the occurrence of that evening, always to keep that door unlocked. It may be observed that if that door should be left so that it could be opened by means of the panic bar, a patron might leave through that door without paying his bill. It does not appear that anyone watched that door to prevent patrons from so doing.

(2)   A door two and one-third feet wide leading from the foyer, near the revolving door, into the small vestibule adjoining the office, already described.  From that vestibule another similar door, swinging inward, gave egress to Piedmont Street, near the revolving door.  The door to Piedmont Street could not be opened fully, because of a wall shelf.  And that door was commonly barred in the evening, as it was on November 28, 1942, by a removable board with clothing hooks on it, and by clothing, for in the evening the office and vestibule were used for checking clothing.

(3)   A door, opening outward, from the middle of the wall of the main dining room to Shawmut Street, and marked ‘Exit’ by an electric sign. The opening was about three and two-thirds feet wide. The defendant testified that this was the principal exit provided for emergencies. From the sides of the opening hung double doors, equipped with ‘panic’ bars intended to unbolt and open the doors upon pressure from within. But on the evening of November 28, *391 1942, one of the two doors did not open upon pressure, and had to be hammered with a table before it would open. Besides, the ‘panic’ doors were hidden from the view of diners by a pair of ‘Venetian’ wooden doors, swinging inward, and fastened by a hook, which had to be opened before one could operate the ‘panic’ doors. In addition, dining tables were regularly placed near the Venetian doors, one of them within two feet, and these had to be moved away in order to get access to the doors. That condition prevailed on the evening of November 28, 1942.

(4)   The service door, two and one-half feet wide, swinging inward, leading to Shawmut Street at 8 Shawmut Street.  This door was near the stage, at the foot of a stairway leading to dressing rooms on the second floor, and was in a part of the premises to which patrons were not admitted and which they could not see.  This door was known to employees, but doubtless not to patrons.  It was kept locked by direction of the defendant, and the key was kept in a desk in the office.

(5)   The door, two and three-fourths feet wide, swinging inward, leading from a corridor into which patrons had no occasion to go, to Shawmut Street at 6 Shawmut Street.  No patron was likely to know of

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this door.  It was kept locked by direction of the defendant, but he ordered the key placed in the lock at seven every evening.

[2] [3] We now come to the story of the fire. A little after ten o'clock on the evening of Saturday, November 28, 1942, the night club was well filled with a crowd of patrons. It was during the busiest season of the year. An important football game in the afternoon had attracted many visitors to Boston. Witnesses were rightly**907 permitted to testify that the dance floor had from eighty to one hundred persons on it, and that it was ‘very crowded.’   Beverley v. Boston Elevated Railway, 194 Mass. 450, 457, 80 N.E. 507. Witnesses were rightly permitted to give their estimates, derived from their observations, of the number of patrons in various parts of the night club. Upon the evidence it could have been found that at that time there were from two hundred fifty to four hundred persons in the Melody Lounge, from four hundred *392 to five hundred in the main dining room and the Caricature Bar, and two hundred fifty in the Cocktail Lounge. Yet it could have been found that the crowd was no larger than it had been on other Saturday evenings before the defendant was taken ill, and that there had been larger crowds at earlier times. There were about seventy tables in the dining room, each seating from two to eight persons. There was testimony that all but two were taken. Many persons were standing in various rooms. The defendant testified that the reasonable capacity of the night club, exclusive of the new Cocktail Lounge, was six hundred fifty patrons. He never saw the new Cocktail Lounge with the furniture installed, but it was planned to accommodate from one hundred to one hundred twenty-five patrons.

A bartender in the Melody Lounge noticed that an electric light bulb which was in or near the cocoanut husks of an artificial palm tree in the corner had been turned off and that the corner was dark. He directed a sixteen year old bar boy who was waiting on customers at the tables to cause the bulb to be lighted. A soldier sitting with other persons near the light told the bar boy to leave it unlighted. But the bar boy got a stool, lighted a match in order to see the bulb, turned the bulb in its socket, and thus lighted it. The bar boy blew the match out, and started to walk away. Apparently the flame of the match had ignited the palm tree and that had speedily ignited the low cloth ceiling near it, for both flamed up almost instantly. The fire spread with great rapidity across the upper part of the room, causing much heat. The crowd in the Melody Lounge rushed up the stairs, but the fire preceded them. People got on fire while on the stairway. The fire spread with great speed across the foyer and into the Caricature Bar and the main dining room, and thence into the Cocktail Lounge. Soon after the fire started the lights in the night club went out. The smoke had a peculiar odor. The crowd were panic stricken, and rushed and pushed in every direction through the night club, screaming, and overturning tables and chairs in their attempts to escape.

The door at the head of the Melody Lounge stairway *393 was not opened until firemen broke it down from outside with an axe and found it locked by a key lock, so that the panic bar could not operate. Two dead bodies were found close to it, and a pile of bodies about seven feet from it. The door in the vestibule of the office did not become open, and was barred by the clothing rack. The revolving door soon jammed, but was burst out by the pressure of the crowd. The head waiter and another waiter tried to get open the panic doors from the main dining room to Shawmut Street, and succeeded after some difficulty. The other two doors to Shawmut Street were locked, and were opened by force from outside by firemen and others. Some patrons escaped through them, but many dead bodies were piled up inside them. A considerable number of patrons escaped through the Broadway door, but many died just inside that door. Some employees, and a great number of patrons, died in the fire. Others were taken out of the building with fatal burns and injuries from smoke, and died within a few days.

I.   The pleadings, verdicts, and judgments.

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The defendant, his brother James Welansky, and Jacob Goldfine, were indicted for manslaughter in sixteen counts of an indictment numbered 413, each count for causing the death of a person described as ‘Jane Doe,’ ‘John Doe,’ or the like. The first six counts were quashed, leaving the last ten counts. Later a motion by the Commonwealth was allowed, substituting in each of the last ten counts the real name of a victim. See Commonwealth v. DiStasio, 294 Mass. 273, 278, 279, 1 N.E.2d 189. Voluntarily the Commonwealth filed specifications as to those counts, by which it specified among other things that the alleged misconduct of the defendant consisted in causing or permitting or failing reasonably to prevent defective wiring, the installation of inflammable decorations, the absence of fire doors, the absence of ‘proper means of egress properly maintained’ and ‘sufficient proper’ exits, and overcrowding. Some other specifications-**908 such as failure to prevent the unlawful employment of minors-plainly had little or no relation *394 to any wanton or reckless conduct that might result in manslaughter. The Commonwealth refused to specify as requested by the defendant what statutes, what ‘provisions of’ the common law, or what ordinances, had been violated. The Commonwealth did specify the nature of the mortal injuries suffered by the different victims, all of whom were patrons, and the harmful consequences to which acts or omissions of the defendant exposed the several victims and which could have been foreseen by the defendant. The judge refused to require further specifications.

The defendant moved to quash each count because (1) when read with the specifications it sets out no crime, and (2) when read with the specifications it does not fully, plainly, substantially and formally set out any crime as required by art. 12 of the Declaration of Rights. Each of the counts numbered from 7 to 12, inclusive, as amended alleged in substance that the New Cocoanut Grove, Inc., a corporation, did for a period of time prior to and including November 28, 1942, maintain and operate a night club, to which it invited members of the general public; that it was under a legal duty to its invitees to use reasonable care to keep its premises safe for their use; that the three persons indicted were authorized by the corporation to maintain, control, operate, construct, alter, supervise, and manage its premises in its behalf; that said three persons accepted the responsibility for such acts, and were therefore under a duty to its invitees to use such reasonable care; that in reckless disregard of such duty to one (naming the victim) who was lawfully upon said premises pursuant to such invitation to the general public, and of the probable harmful consequences to him of their failure to perform said duty, they and each of them did ‘wilfully, wantonly and recklessly neglect and fail to fulfil their said legal duty and obligation to the said’ victim, by reason whereof he on November 28, 1942, received a mortal injury, as a result of which on that day he died.

Each of the thirteenth and fourteenth counts is in shorter form, and alleges in substance that the three persons indicted and each of them on November 28, 1942, did ‘maintain,*395 manage, operate and supervise certain premises,’ describing them, ‘and solicited and invited the patronage of the public to the said premises'; that at the aforesaid time and place the named victim was lawfully upon the aforesaid premises as a customer on the said invitation, and that the three persons indicted and each of them did ‘assault and beat’ the said victim, and by said assault and beating did kill him ‘by wilfully, wantonly and recklessly maintaining, managing, operating and supervising the said premises.’Each of counts 15 and 16 alleges merely that the defendants assaulted and beat a named victim and by such assaulting and beating did kill the victim.

[4] Another indictment numbered 414 in sixteen counts was returned against the same three persons. The first six counts were quashed, and a verdict of not guilty was directed upon the sixteenth count. That left nine counts, numbered 7 to 15, inclusive. Counts 7 to 14, inclusive, were substantially like counts 7 to 14, inclusive, in the indictment numbered 413, except for the names of the victims. Count 15 was a short count alleging that the three persons indicted ‘on the twenty-eighth day of November in the year of our Lord one thousand nine hundred and forty-two, did, all and each of them, assault and beat one Eleanor Chiampa, and

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by such assault and beating, did kill the said Eleanor Chiampa.’That count followed the form of an indictment for manslaughter appended to G.L.(Ter.Ed.) c. 277, § 79. That form could properly be used even in a case of involuntary manslaughter. Commonwealth v. Arone, 265 Mass. 128, 163 N.E. 758. Upon this indictment the Commonwealth furnished specifications substantially like those furnished upon indictment 413.

[5] [6] [7] The motions to quash certain counts of these indictments were properly denied. The judge was bound to require a bill of particulars only to the extent that without it the indictment would be deficient in that the offence charge would not be ‘fully, plainly, substantially and formally set out,’ as required by art. 12 of the Declaration of Rights.G.L.(Ter.Ed.) c. 277, § 40. Commonwealth v. Snell, 189 Mass. 12, 18, 19, 75 N.E. 75, 3 L.R.A., N.S., 1019; *396Commonwealth v. Sinclair, 195 Mass. 100, 105-108, 80 N.E. 799, 11 Ann.Cas. 217; Commonwealth v. Massad, 242 Mass. 532, 136 N.E. 615. Beyond that the requirement of particulars or specifications was discretionary. Commonwealth v. King, 202 Mass. 379, 384, 88 N.E. 454; Commonwealth v. Bartolini, 299 Mass. 503, 509, 13 N.E.2d 382. **909Commonwealth v. Hayes, 311 Mass. 21, 40 N.E.2d 27. The defendant had the benefit of specifications that were fully as complete and detailed as were necessary for compliance with the Constitution or for fairness to him. Commonwealth v. Wakelin, 230 Mass. 567, 571, 120 N.E. 209; Commonwealth v. Lammi, 310 Mass. 159, 37 N.E.2d 250. For constitutional purposes ‘all that is required is that the indictment, read with the bill of particulars, be sufficient fully, plainly, substantially and formally to give the defendant reasonable knowledge of the crime with which he is charged.’ Commonwealth v. Hayes, 311 Mass. 21, 25, 40 N.E.2d 27, 31. Commonwealth v. Gedzium, 259 Mass. 453, 457, 156 N.E. 890; Commonwealth v. Albert, 307 Mass. 239, 243, 29 N.E.2d 817. There is nothing in the motions to quash. There is still less, if that were possible, in the belated attempt to raise the same question of pleading by motion in arrest of judgment. Commonwealth v. McKnight, 283 Mass. 35, 38, 39, 186 N.E. 42.

The defendant was found guilty upon counts 7 to 16, inclusive, of indictment 413 and upon counts 7 to 15, inclusive, of indictment 414. He was sentenced to imprisonment in the State prison upon each count for a term of not less than twelve years and not more than fifteen years, the first day of said term to be in solitary confinement and the residue at hard labor g.l.(t/er.Ed.) c. 279, § 29), the sentences to run concurrently. Upon a motion for a stay in the execution of the sentences, a stay was denied.G.L.(Ter.Ed.) c. 279, § 4, as amended by St.1935, c. 50, § 3. The cases come here under G.L.(Ter.Ed.) c. 278, §§ 33A-33G, upon an appeal, a transcript of the evidence, a summary of the record, and an assignment of one hundred twenty-four alleged errors.

II.   The principles governing liability.

The Commonwealth disclaimed any contention that the defendant intentionally killed or injured the persons named in the indictments as victims. It based its case on involuntary*397 manslaughter through wanton or reckless conduct. The judge instructed the jury correctly with respect to the nature of such conduct.FN1

FN1. In the only comparable case known in this Commonwealth, the jury were similarly instructed. That was the case of Commonwealth v. Hendrick & others, tried in the Superior Court in Suffolk County in August, 1925, a case of alleged manslaughter arising out of the collapse of a night club building called the Pickwick Club, which happened on July 4, 1925. A copy of the charge is in the Social Law Library. The case did not come to this court.

The following cases involved manslaughter arising out of the collapse of a building. People v. Buddensieck, 103 N.Y. 487, 9 N.E. 44, 57 Am.Rep. 766; State v. Ireland, 126 N.J.L. 444, 20 A.2d

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69.

The following cases involved manslaughter arising out of a fire. Commonwealth v. Rhoads, 20 Pa.Dist.R. 149. See also Miller v. Strahl, 239 U.S. 426, 36 S.Ct. 147, 60 L.Ed. 364.

[8] Usually wanton or reckless conduct consists of an affirmative act, like driving an automobile or discharging a firearm, in disregard of probable harmful consequences to another. But where as in the present case there is a duty of care for the safety of business visitors invited to premises which the defendant controls,FN2 wanton or reckless conduct may consist of intentional failure to take such care in disregard of the probable harmful consequences to them or of their right to care. Aiken v. Holyoke Street Railway, 184 Mass. 269, 271, 68 N.E. 238; Banks v. Braman, 188 Mass. 367, 369, 74 N.E. 594; Queen v. Senior, [1899] 1 Q.B. 283. State v. Benton, 8 W.W.Harr. 1, 38 Del. 1, 187 A. 609; Am. Law Inst. Restatement: Torts, § 500; 26 Am.Jur. Homicide, §§ 205-208; 29 C.J. 1154, et seq.; 40 C.J.S., Homicide, § 62.

FN2. Compare the case of an employer who at common law owes no duty to his employees to make his factory safer than it appeared to be when the employment began, because they contractually assumed the risk. Jones v. Granite Mills, 126 Mass. 84, 30 Am.Rep. 661; Keith v. Granite Mills, 126 Mass. 90, 30 Am.Rep. 666; Pauley v. Steam Gauge & Lantern Co., 131 N.Y. 90, 29 N.E. 999, 15 L.R.A. 194; Huda v. American Glucose Co., 154 N.Y. 474, 48 N.E. 897, 40 L.R.A. 411. In those cases recovery by a servant against his master for injury caused by fire in a factory was denied. See also Wainwright v. Jackson, 291 Mass. 100, 195 N.E. 896; Little v. Lynn & Marblehead Real Estate Co., 301 Mass. 156, 16 N.E.2d 688. In Cloutier v. Oakland Park Amusement Co., 129 Me. 454, 152 A. 628, the court failed to distinguish between such cases and the case of an invited business visitor.

[9] To define wanton or reckless conduct so as to distinguish it clearly from negligence and gross negligence is not easy.**910 Banks v. Braman, 188 Mass. 367, 370, 74 N.E. 594; Commonwealth v. Arone, 265 Mass. 128, 132, 163 N.E. 758. Sometimes the word ‘wilful’ is prefaced to the words ‘wanton’ and ‘reckless' in expressing the concept. That only blurs it. Wilful means intentional. In the phrase ‘wilful, wanton or reckless conduct,’ if ‘wilful’ modifies ‘conduct’ it introduces *398 something different from wanton or reckless conduct, even though the legal result is the same. Wilfully causing harm is a wrong, but a different wrong from wantonly or recklessly causing harm. If ‘wilful’ modifies ‘wanton or reckless conduct’ its use is accurate. What must be intended is the conduct, not the resulting harm. Altman v. Aronson, 231 Mass. 588, 592, 121 N.E. 505, 4 A.L.R. 1185; Banks v. Braman, 188 Mass. 367, 369, 74 N.E. 594. The words ‘wanton’ and ‘reckless' are practically synonymous in this connection, although the word ‘wanton’ may contain a suggestion of arrogance or insolence or heartlessness that is lacking in the word ‘reckless.’ But intentional conduct to which either word applies is followed by the same legal consequences as though both words applied.

[10] [11] [12] The standard of wanton or reckless conduct is at once subjective and objective, as has been recognized ever since Commonwealth v. Pierce, 138 Mass. 165, 52 Am.Rep. 264. Knowing facts that would cause a reasonable man to know the danger is equivalent to knowing the danger. Banks v. Braman, 188 Mass. 367, 369, 74 N.E. 594; Romana v. Boston Elevated Railway, 218 Mass. 76, 83, 105 N.E. 598, L.R.A.1915A, 510, Ann.Cas. 1917A, 893; Commonwealth v. Peach, 239 Mass. 575, 132 N.E. 351; Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 57 L.Ed. 1232; Arizona Employers' Liability Cases, 250 U.S. 400, 432, 39 S.Ct. 553, 63 L.Ed. 1058, 6 A.L.R. 1537; Am. Law Inst. Restatement: Torts, § 500, and also comments c and f. See also Brennan v. Schuster, 288 Mass. 311, 192 N.E. 835. The judge charged the

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jury correctly when he said, ‘To constitute wanton or reckless conduct, as distinguished from mere negligence, grave danger to others must have been apparent and the defendant must have chosen to run the risk rather than alter his conduct so as to avoid the act or omission which caused the harm. If the grave danger was in fact realized by the defendant, his subsequent voluntary act or omission which caused the harm amounts to wanton or reckless conduct, no matter whether the ordinary man would have realized the gravity of the danger or not. But even if a particular defendant is so stupid [or] so heedless * * * that in fact he did not realize the grave danger, he cannot escape the imputation of wanton or reckless conduct in his dangerous act or omission, if an ordinary normal *399 man under the same circumstances would have realized the gravity of the danger. A man may be reckless within the meaning of the law although he himself thought he was careful.’

[13] The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another. Am.Law Inst. Restatement: Torts, § 500; LeSaint v. Weston, 301 Mass. 136, 138, 16 N.E.2d 631. Wanton or reckless conduct amounts to what has been variously described as indifference to or disregard of probable consequences to that other ( Aiken v. Holyoke Street Railway, 184 Mass. 269, 271, 68 N.E. 238; Freeman v. United Fruit Co., 223 Mass. 300, 302, 111 N.E. 789; Banks v. Braman, 188 Mass. 367, 369, 74 N.E. 594; Yancey v. Boston Elevated Railway, 205 Mass. 162, 171, 91 N.E. 202, 26 L.R.A.,N.S., 1217, 137 Am.St.Rep. 431; Burns' Case, 218 Mass. 8, 10, 105 N.E. 601, Ann.Cas. 1916A, 787; Romana v. Boston Elevated Railway, 218 Mass. 76, 83, 105 N.E. 598, L.R.A.1915A, 510, Ann.Cas.1917A, 893; Sullivan v. Napolitano, 277 Mass. 341, 344, 178 N.E. 654) or the rights of that other. Warren v. Pazolt, 203 Mass. 328, 347, 89 N.E. 381; Commonwealth v. Horsfall, 213 Mass. 232, 235, 100 N.E. 362, Ann.Cas.1914A, 682; Cohen v. Daives, 305 Mass. 152, 155, 156, 25 N.E.2d 223, 129 A.L.R. 735; But we are not prepared to give unqualified approval to a further statement found in some of our reported decisions, for example in Query v. Howe, 273 Mass. 92, 96, 172 N.E. 887, that to constitute wanton or reckless conduct, disregard of the rights of another must be as complete or utter as though such rights did not exist. If taken literally, that statement would permit a trifling regard for the rights of another to exonerate a defendant from the criminal consequencees of flagrant wrongdoing.

[14] [15] The words ‘wanton’ and ‘reckless' are thus not merely rhetorical or vituperative expressions used instead of **911 negligent or grossly negligent. They express a difference in the degree of risk and in the voluntary taking of risk so marked, as compared with negligence, as to amount substantially and in the eyes of the law to a difference in kind. Banks v. Braman, 188 Mass. 367, 74 N.E. 594; Cotter, Petitioner, 237 Mass. 68, 72, 129 N.E. 426; Adamowicz v. Newburyport Gas & Electric Co., 238 Mass. 244, 246, 130 N.E. 388; Prondecka v. Turners Falls Power & Electric Co., 238 Mass. 239, 242, 130 N.E. 386; Id., 241 Mass. 100, 102, 134 N.E. 352; *400McIntyre v. Converse, 238 Mass. 592, 594, 131 N.E. 198; Young v. Worcester, 253 Mass. 481, 484, 149 N.E. 204; Potter v. Gilmore, 282 Mass. 49, 57, 184 N.E. 373, 87 A.L.R. 1462; Am.Law Inst.Restatement: Torts, § 500, comment g. For many years this court has been careful to preserve the distinction between negligence and gross negligence, on the one hand, and wanton or reckless conduct on the other. Prondecka v. Turners Falls Power & Electric Co., 238 Mass. 239, 130 N.E. 386; Id., 241 Mass. 100, 134 N.E. 352. Compare Jamison v. Encarnacion, 281 U.S. 635, 50 S.Ct. 440, 74 L.Ed. 1082; Alpha Steamship Corp. v. Cain, 281 U.S. 642, 50 S.Ct. 443, 74 L.Ed. 1086. In pleadings as well as in statutes the rule is that ‘negligence and willful and wanton conduct are so different in kind that words properly descriptive of the one commonly exclude the other.’ Miller v. United States Fidelity & Guaranty Co., 291 Mass. 445, 447, 197 N.E. 75, 76; Romana v. Boston Elevated Railway, 226 Mass. 532, 536, 116 N.E. 218.

[16] Notwithstanding language used commonly in earlier cases, and occasionally in later ones,FN3 it is now

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clear in this Commonwealth that at common law conduct does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wanton or reckless conduct. There is in Massachusetts at common law no such thing as ‘criminal negligence.’   Commonwealth v. Guillemette, 243 Mass. 346, 137 N.E. 700; Commonwealth v. Arone, 265 Mass. 128, 163 N.E. 758; Commonwealth v. Jones, 288 Mass. 150, 152, 192 N.E. 522;*401 Minasian v. Aetna Life Ins. Co., 295 Mass. 1, 5, 3 N.E.2d 17; Commonwealth v. Maguire, 313 Mass. 669, 48 N.E.2d 665.

FN3. In early cases what is now known as wanton or reckless conduct was variously described as wilful negligence, wanton negligence, gross negligence, and culpable negligence, as was pointed out in Bjornquist v. Boston & Albany Railroad, 185 Mass. 130, 134, 70 N.E. 53, 102 Am.St.Rep. 332, and Banks v. Braman, 188 Mass. 367, 370, 74 N.E. 594. So in criminal cases what was necessary to make conduct criminal was often so described. The expression ‘criminal negligence’ was often used. But it seems that what we now know as wanton or reckless conduct was in fact required. The terminology, not the law, is what has changed. Commonwealth v. Hartwell, 128 Mass. 415, 35 Am.Rep. 391; Commonwealth v. Pierce, 138 Mass. 165, 52 Am.Rep. 264; Commonwealth v. Hawkins, 157 Mass. 551, 32 N.E. 862; Lanci v. Boston Elevated Railway, 197 Mass. 32, 35, 83 N.E. 1; Romana v. Boston Elevated Railway, 218 Mass. 76, 84, 105 N.E. 598, L.R.A.1915A, 510, Ann.Cas.1917A, 893; Commonwealth v. McCan, 277 Mass. 199, 203, 178 N.E. 633, 78 A.L.R. 1208. At least one statute purports to impose criminal liability for ‘gross negligence.’ G.L. (Ter.Ed.) c. 265, § 30. Whether that expression really means wanton or reckless conduct has not been decided.

In other jurisdictions a variety of similar expressions has been used in describing conduct that will create criminal liability. But in many of them the substantial equivalent of wanton or reckless conduct is required. People v. Angelo, 246 N.Y. 451, 159 N.E. 394; Regina v. Elliott, 16 Cox C.C. 710; People v. Burgard, 377 Ill. 322, 36 N.E.2d 558; People v. Lynn, 385 Ill. 165, 52 N.E.2d 166; State v. Cope, 204 N.C. 28, 167 S.E. 456; State v. Studebaker, 334 Mo. 471, 66 S.W.2d 877; State v. Sawyers, 336 Mo. 644, 80 S.W.2d 164; Bell v. Commonwealth, 170 Va. 597, 195 S.E. 675; State v. Whatley, 210 Wis. 157, 245 N.W. 93, 99 A.L.R. 749; 29 C.J. 1154, et seq.; 40 C.J.S., Homicide, § 62.

[17] [18] Wanton or reckless conduct is the legal equivalent of intentional conduct. Aiken v. Holyoke Street Railway, 184 Mass. 269, 271, 68 N.E. 238; Banks v. Braman, 188 Mass. 367, 369, 74 N.E. 594; McIntyre v. Converse, 238 Mass. 592, 594, 131 N.E. 198; Sullivan v. Napolitano, 277 Mass. 341, 178 N.E. 654; Isaacson v. Boston, Worcester & New York Street Railway, 278 Mass. 378, 387, 180 N.E. 118: Baines v. Collins, 310 Mass. 523, 526, 38 N.E.2d 626, 138 A.L.R. 1123; Am.Law Inst.Restatement: Torts, § 282, comment d. If by wanton or reckless conduct bodily injury is caused to another, the person guilty of such conduct is guilty of assault **912 and battery. Commonwealth v. Hawkins, 157 Mass. 551, 32 N.E. 862; Commonwealth v. Gorman, 288 Mass. 294, 299, 192 N.E. 618, 96 A.L.R. 977; Commonwealth v. McCan, 277 Mass. 199, 203, 178 N.E. 633, 78 A.L.R. 1208; State v. Schutte, 87 N.J.L. 15, 93 A. 112,affirmed 88 N.J.L. 396, 96 A. 659; Brimhall v. State, 31 Ariz. 522, 255 P. 165, 53 A.L.R. 231; Woodward v. State, 164 Miss. 468, 144 So. 895; Davis v. Commonwealth, 150 Va. 611, 143 S.E. 641. And since manslaughter is simply a battery that causes death ( Minasian v. Aetna Life Ins. Co., 295 Mass. 1, 5, 3 N.E.2d 17; Commonwealth v. Velleco, 272 Mass. 94, 99, 171 N.E. 16), if death results he is guilty of manslaughter. Commonwealth v. Hartwell, 128 Mass. 415, 417, 35 Am.Rep. 391; Commonwealth v. Pierce, 138 Mass. 165, 52 Am.Rep. 264; Commonwealth v. Hawkins, 157 Mass. 551, 553, 32 N.E. 862; Commonwealth v. Parsons, 195 Mass. 560, 569, 81 N.E. 291; Commonwealth v. Peach, 239 Mass. 575, 132 N.E. 351; Commonwealth v. Guillemette, 243 Mass. 346, 137 N.E. 700; Commonwealth v. Arone, 265 Mass. 128,

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163 N.E. 758; Commonwealth v. Jones, 288 Mass. 150, 152, 192 N.E. 522; Minasian v. Aetna Life Ins. Co., 295 Mass. 1, 5, 3 N.E.2d 17; Commonwealth v. Maguire, 313 Mass. 669, 48 N.E.2d 665.

To convict the defendant of manslaughter, the Commonwealth was not required to prove that he caused the fire by some wanton or reckless conduct. Fire in a place of public resort is an ever present danger. It was enough to prove that death resulted from his wanton or reckless disregard of the safety of patrons in the event of fire from any cause.

III.   The alleged errors at the trial.

[19] [20] 1. There is nothing in the contention that the judge should not have ordered a view of the burned premises, and *402 should not have admitted photographs taken after the fire,. True, the fire changed the appearance of the place, and the defendant suggests that acts of individuals after the fire also made some changes. But the walls, most of the partitions, and even some of the furniture, remained. The view enabled the jury to understand the evidence. The photographs were of value as evidence. Any material changes from conditions before the fire could have been shown by evidence.

[21] [22] [23] 2. The Commonwealth had the burden of showing that the alleged wanton or reckless failure to care for the safety of patrons was that of the defendant rather than that of some other officer or employee to whom the duty had been entrusted. Criminal responsibility is generally personal, and personal fault must be shown. Commonwealth v. Stevens, 153 Mass. 421, 26 N.E. 992, 11 L.R.A. 357, 25 Am.St.Rep. 647; Commonwealth v. Anthony, 306 Mass. 470, 478, 28 N.E.2d 542; Commonwealth v. Beal, 314 Mass. 210, 222, 50 N.E.2d 14; Braga v. Braga, 314 Mass. 666, 672, 51 N.E.2d 429. Until the defendant testified at a late stage of the case, he admitted nothing, and excepted to the introduction of almost every piece of evidence tending to show his control of the corporation or of its premises. The Commonwealth was entitled to introduce in detail facts showing such control. One such fact was that he frequently gave orders to the clerk of the corporation to make and attest records and returns of imaginary meetings and votes. The defendant excepted to the admission of each piece of evidence, but did not take the course, which would have made all such evidence immaterial and unnecessary, of admitting complete control, until he did so in his later testimony. He now complains that the jury were given an unfavorable impression of his character and conduct in matters not relevant to any wanton or reckless conduct. But if he has been prejudiced thereby, he should blame his own insistence upon trying the case ‘closely,’ as the phrase is, with respect to a point that later he had to admit.

[24] 3. There is nothing in the point that because the corporation might have been indicted and convicted, the defendant could not be. The defendant was in full control of the *403 corporation, its officers and employees, its business and its premises. He could not escape criminal responsibility by using a corporate form.

[25] [26] 4. The Commonwealth was properly allowed to show that an exit from the Cocktail Lounge to Shawmut Street and fire doors in the Cocktail Lounge and between that and the older part of the premises, called for by the plans that were approved by the building department of the city of Boston under St.1907, c. 550, § 12, as amended, had not been provided when the defendant last had knowledge of the premises on November 16, 1942, although he planned to open the Cocktail Lounge the next day; that the mode of construction of the Cocktail Lounge indicated**913 that he did not intend to provide either; and that they had not been provided at the time of the fire. As planned, the fire doors were to be held open by fusible plugs that would melt and allow the doors to close automatically in case of fire. They and the exits might have afforded some protection to persons in the Cocktail Lounge. The violation of such a statute is not

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negligence per se but sometimes is evidence of negligence. Richmond v. Warren Institution for Savings, 307 Mass. 483, 30 N.E.2d 407, 132 A.L.R. 859; Kelly v. Hathaway Bakeries, Inc., 312 Mass. 297, 299, 44 N.E.2d 654; Greenway Wood Heel Co., Inc., v. John Shea Co., 313 Mass. 177, 46 N.E.2d 746; Carroll v. Hemenway, 315 Mass. 45-47, 51 N.E.2d 952. Standing by itself, it would not warrant a finding of wanton or reckless conduct. Silver's Case, 260 Mass. 222, 224, 157 N.E. 342; Commonwealth v. Arone, 265 Mass. 128, 131, 163 N.E. 758; Carroll v. Hemenway, 315 Mass. 45, 51 N.E.2d 952; People v. Lynn, 385 Ill. 165, 52 N.E.2d 166; Am.Law Inst. Restatement: Torts, § 500, comment e. But it might be considered with other evidence. There was no error in its admission. Commonwealth v. Hawkins, 157 Mass. 551, 553, 554, 32 N.E. 862; Isaacson v. Boston, Worcester & New York Street Railway, 278 Mass. 378, 390, 180 N.E. 118.

[27] 5. The Commonwealth introduced evidence that the electrical system was defective and dangerous. Shortly after the fire started the electric lights went out, leaving the patrons struggling in the dark. What caused the lights to go out did not appear. There was no evidence that the defendant knew, or had reason to know, of any defect in the *404 electrical system. There was no evidence that faulty wiring caused the fire, or bore any causal relation to the deaths. A verdict of guilty could not lawfully have been based upon any such defect. But when the evidence was introduced the judge could not foresee that knowledge on the part of the defendant and some causal relation would not be shown. He had a right to let the Commonwealth begin by proving defective wiring. If the defendant had a remedy, it was by asking the judge to strike out the evidence when it appeared that no causal relation existed and the defendant was not shown to be responsible for any such defect, or by asking the judge to instruct the jury that a verdict of guilty could not be based upon wanton or reckless conduct with respect to the electrical system. No such request was made.

6.   Other assignments of error, relied on by the defendant but not discussed in this opinion, have not been overlooked.  We find nothing in them that requires discussion.

Judgments affirmed.

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