Anderson v. Beacon Oil Co.

• Decision Date: 29 November 1932
• Citation: 183 N.E. 152,281 Mass. 108
• Parties: ANDERSON v. BEACON OIL CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

281 Mass. 108

183 N.E. 152

ANDERSON

v.BEACON OIL CO.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 29, 1932.

Exceptions from Superior Court, Middlesex County; C. H. Donahue, Judge.

Action by Eva Anderson against the Beacon Oil Company. Verdict for defendant, and plaintiff brings exceptions.

Exceptions overruled.

G. I. Cohen, of Boston, for plaintiff.

E. J. Sullivan, of Boston, for defendant.

LUMMUS, J.

On February 10, 1928, there was an explosion in the oil storage and refining plant of the defendant at Everett, which injured the plaintiff a fifth of a mile away. The jury, in response to a question submitted to them, found that the explosion was not caused by negligence for which the defendant is legally responsible, and returned a verdict for the defendant. The case is here on exceptions to the charge.

One exception is to a statement in the charge that there was no evidence of any defective condition in certain specified machinery. As to this, it is enough to say that the bill of exceptions fails to show any inaccuracy in what the judge said.

The exception more strongly argued is the plaintiff's exception to the following passage at the end of the charge: ‘The mere fact that the vaporizer exploded is not evidence that the condition of the vaporizer was improper or defective, or that its operation was improper or negligent. If the explosion came from some cause undetermined, some cause not determinable in evidence, the defendant is not liable. The plaintiff offered evidence of no other cause for the explosion than that which I have earlier stated; briefly, that hot oil came in contact with water at the bottom of the tank. So you will have to determine here whether or not the cause of the explosion was what the plaintiff claims. If you do not find that, then your verdict must be for the defendant.’

The plaintiff urges that this passage was erroneous, because it limited her to proof of specific negligence, and deprived her of the right to go to the jury upon the theory that, res ipsa loquitur. The record is bare of suggestion that the plaintiff relied at the trial on that theory, or on any theory except that stated by the judge in the quoted passage and amplified in earlier passages stating the plaintiff's contention, to which no exception was taken. No request was made at any time to have the charge modified in any way, or to have the case submitted to the jury on the theory of res ipsa loquitur.

[1] To obtain in an appellate court the correction of erroneous rulings is only part of the purpose of the law in giving the right to take exceptions. An aim equally important is to warn the trial judge of his alleged error, so that he may correct it at the time and thus terminate the litigation. To that end, apart from the possible extraordinary power of this court to prevent miscarriage of justice as to points not formally taken (Noyes v. Noyes, 224 Mass. 125, 134, 112 N. E. 850;Commonwealth v. Dascalakis, 246 Mass. 12, 25, 140 N. E. 470;O'Brien v. Shea, 208 Mass. 528, 534, 95 N. E. 99, Ann. Cas. 1912A, 1930), it is the duty of the excepting party to point out the alleged error to which exception is saved. Where a judge uses language which is inaccurate in some respect not apparent and not brought home to him by a request for instructions, the party excepting to the instruction must apprise the judge of the nature of his error. Commonwealth v. Walsh, 162 Mass. 242, 245, 38 N. E. 436;Barker v. Loring, 177 Mass. 389, 59 N. E. 66;Robbins v. Stoughton Mills, 183 Mass, 86, 88, 66 N. E. 417;Sawyer v. Worcester Consolidated Street Railway Co., 231 Mass. 215, 219, 120 N. E. 404;Callahan v. Fleischman Co., 262 Mass. 437, ...