207 Mass. 102 (1910), Driscoll v. Gaffey

Citation207 Mass. 102, 92 N.E. 1010
Opinion JudgeHAMMOND, J.
Party NameDRISCOLL v. GAFFEY (two cases).
AttorneyD. N. Crowley, for plaintiffs. Matthews, Thompson & Spring, for defendant.
Case DateNovember 22, 1910
CourtSupreme Judicial Court of Massachusetts

Page 102

207 Mass. 102 (1910)

92 N.E. 1010

DRISCOLL

v.

GAFFEY (two cases).

Supreme Judicial Court of Massachusetts, Essex.

November 22, 1910

[92 N.E. 1011]

COUNSEL

Page 108

D. N. Crowley, for plaintiffs.

Matthews, Thompson & Spring, for defendant.

OPINION

Page 103

HAMMOND, J.

In the second of these two cases, which were tried together, the wife sues for compensation of injuries received through the negligent blasting of a ledge by the defendant, and in the first the husband sues to recover expenses incurred by him in the medical treatment and care of his wife on account of such injuries. In each case the jury found for the plaintiff; and both cases are before us upon the defendant's exceptions to the refusal of the court to give certain rulings requested by him, and to a certain part of the charge. The case of the wife will be first considered.

It is strongly urged by the defendant that there was no evidence of negligence in the method of blasting. But we think that the question whether the charge was covered or otherwise

Page 104

properly protected, and whether if it had been the rock would have been hurled to the plaintiff's house, were for the jury. Much of the defendant's brief is devoted to a discussion of the doctrine of res ipsa loquitur; and it is contended that the doctrine is not applicable to the circumstances of this case. We do not find upon the record that the presiding justice said it was. On the contrary, after speaking of the various respects in which the plaintiff charged negligence of the defendant, he proceeds in his charge as follows: 'You are to bear in mind--I again repeat it--that it is not * * * simply [for her] to say, why, here is a rock thrown, and we do not generally expect rocks to be thrown from a blast into a person's house, and now it is for the defendant to show that he was in the exercise of due care. * * * That is not the rule here. The throwing of the stone is conceded. The burden is upon the plaintiff to show you that the defendant was negligent in some of these ways or in all of them, that she, the plaintiff, has suggested. And in considering that question I again say to you you are not to take into account the results. You are in your mind's eye to go there onto the premises before anything is doen, before any accident has happened, you are to look over the situation there, you are to take into account what people of prudence engaged in this sort of business should do, and you are to say whether in all respects these people did do the things which persons in that situation, having regard to the surroundings, the possibilities of an accident--you are to say whether these people did all that a person ought to have been expected to do under the circumstances. And...

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