General Laws c. 82, § 40, as amended by St. 1968, c. 403, § 1, and as in effect on the day here in question, October 28, 1977, prohibits the making of an excavation on a public way without at least forty-eight hours prior written notice to public utility companies of the intention to excavate. Compliance with § 40 is excused in cases of "emergency." While drilling in an area beneath the street in order to make repairs on a sewer line on October 28, 1977, the employee, Giuseppe Memmolo, struck an electric cable with his air hammer. He was severely injured and sought
1. Evidence Before the Single Member.
The trial judge "was obligated, and this court on appeal is obligated, to sustain the decision of the board, which supersedes that of the single member, Haley's Case, 356 Mass. 678, 679 (1970), if there was any evidence to warrant the conclusion that the employee was `injured by reason of the serious and wilful misconduct of an employer or of any person regularly intrusted with and exercising the powers of superintendence.' G.L.c. 152, § 28." O'Leary's Case, 367 Mass. 108, 111 (1975). Evidence of the following facts was presented to the single member.
a. The Injury.
Some time on October 26, 1977, a representative of Gulf Oil Company (Gulf) telephoned Bond and requested that repair work be done on a street sewer line connected with its Chelsea property. Acting on instructions from Bond, one Charles Sclafani, a foreman at Bond, went to the Gulf property, an office building, and observed that the lavatory facilities were backed up, filled to the top, and that there was a water drainage problem.
Memmolo was assigned by Bond to work with Sclafani on the repair project. Memmolo had arrived in this country in 1975 from Italy, where he had received only four years of schooling and had earned his livelihood as a farmer. He was employed by Bond as a laborer, doing drill work.
Memmolo reported to the Chelsea job site at 7:30 A.M. on October 27, 1977. He saw the street markings earlier made by Sclafani, who was also at the site. Sclafani instructed Memmolo to excavate at the markings with a jack-drill until he reached the pipe. By the end of the work day, 4:00 P.M., Memmolo had excavated about five feet, and the pipe was visible. He returned to the job site the next morning, told Sclafani, "I see concrete down there," and was told by Sclafani not to worry, "you can go on working." Memmolo then continued to excavate with the drill as instructed and "all of a sudden flames came all over me and I was burning." Just before the flames, Memmolo "heard like an explosion, a big noise."
Almost immediately after the accident, James Behenna, a special investigator with Boston Edison Company, went to the Chelsea excavation site and saw water and a Boston Edison duct line
b. The Emergency.
The evidence on the question whether the condition existing on Gulf's property constituted an emergency is, for the most part, conclusory. For example, when a representative
Evidence discrediting the notion of an exigent situation is found in Bond's previously described applications wherein permission to excavate was sought for "an estimated period of 5 days" and in the testimony of Sclafani and Memmolo, that on their first day of work at the job site, they worked a "normal" work day, 7:30 A.M. to 4:00 P.M.
c. The Notice of Excavation.
As previously stated, on the day of the accident, G.L.c. 82, § 40, required Bond, in the absence of an emergency, to give advance (at least forty-eight hours) written notice of the intended excavation work. There is no question that Bond did not do this.
In the face of an emergency, the statute continues, notice "shall be given as soon as may be practicable." On this point, there was evidence of the existence of a "dig safe" telephone calling system, whereby a contractor could call a particular number to inform the public utilities of the excavation work. An officer of Bond testified that he "assume[d]" a "dig safe" call had been made by someone at Bond prior to the commencement of the work, but he could not say when such a call was made, or by whom, or that the call had in fact been made.
The single member found that Memmolo, following the orders of his foreman, Sclafani, used an air hammer to drill and excavate the marked area and in so doing struck an electric cable. The single member further found that the "dig safe" number "was not used to inform Public Utilities of the excavation," that Bond had failed to prove "beyond a reasonable doubt" that an emergency had in fact existed, that Bond had not complied with c. 82, § 40, that Bond's actions constituted "serious and wilful misconduct," and that Memmolo was seriously injured as a result of Bond's actions.
The defendants contend that the evidence did not warrant the findings: (1) that Bond failed to give notice as required by c. 82, § 40; (2) that an emergency did not, in fact, exist; (3) that Bond's actions were serious and wilful misconduct; and (4) that Memmolo's injuries were the result of Bond's actions. These claims "are largely predicated on the mistaken premise that this court can make its own independent findings of fact." Lovasco's Case, 4 Mass.App.Ct. 854, 855 (1976).
The documents which Bond sent or delivered to the department establish that Bond did not give timely written notice under § 40. However, it remained open to Bond to show that it fell within the exception to the general prohibition, that is, that an emergency existed. See Locke, Workmen's Compensation § 502 & n. 15 (2d ed. 1981). Cf. Commonwealth v. Jones, 372 Mass. 403, 405-406 (1977). Whether an emergency in fact existed is here immaterial because § 40 requires that in an exigent situation, notice be given "as soon as may be practicable."
Bond's violation of c. 82, § 40, is "some evidence of [its] negligence as to all consequences the statute was intended to prevent." Adamian v. Three Sons, Inc., 353 Mass. 498, 499 (1968), and authorities therein cited.
The board's finding that Bond's actions constituted serious and wilful misconduct in respect to Memmolo's injuries is neither unwarranted on the evidence nor vitiated by error of law. For discussion of the term "serious and wilful misconduct" as used in G.L.c. 152, § 28, see Scaia's Case, 320 Mass. 432, 434 (1946); Dillon's Case, 324 Mass. 102, 110 (1949); O'Leary's Case, 367 Mass. 108, 115-116 (1975), reaffirming and clarifying reliance on Restatement of Torts § 500 (1934), and Restatement (Second) of Torts § 500 (1965). The board's determination should have been sustained.