Beaureguard v. Webb Granite & Const. Co.

• Decision Date: 29 November 1893
• Citation: 35 N.E. 555,160 Mass. 201
• Parties: BEAUREGUARD v. WEBB GRANITE & CONST. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 201

35 N.E. 555

BEAUREGUARD v. WEBB GRANITE & CONST. CO.

Supreme Judicial Court of Massachusetts, Worcester.

November 29, 1893

COUNSEL

William A. Gile, for plaintiff.

F.A Gaskill and R.M. Washburn, for defendant.

OPINION

FIELD C.J.

The presiding justice compelled the plaintiff, at the close of the evidence, "to elect upon which count she would go to the jury."The declaration contains two counts, each under St.1887, c. 270.The action is by a widow for the death of her husband, Clement Beaureguard, who, it is alleged, was in the exercise of due care, and died without conscious suffering while in the employment of the defendant.The first count is plainly intended as a count under clause 1, § 1, of the statute, and the second count is under clause 2 of the same section.The evidence, so far as it is recited in the report, tends to show no defect in the derrick and its appliances which were used by the defendant, but that the stone which was to be raised by the derrick by means of a pair of iron hooks called "dogs" had no hole drilled in it on one side for the insertion of one of the hooks of the dogs, and that Page, who had charge of the work for the defendant, being impatient that the plaintiff's husband did not sooner get a drill and hammer, as he had ordered him to do, presumably for the purpose of drilling a hole in this side of the stone, directed the engineer to raise the stone as it was, which was done, when the dogs slipped, the stone fell, and a piece rolled and fell upon the plaintiff's husband and killed him.If the report recites all the evidence, then there was no evidence to sustain the first count, and the plaintiff was not harmed by being compelled to elect, as she elected, to proceed under the second count.We think, however, that in this casethe plaintiff should not have been compelled to elect upon which count she should proceed.The clauses in the first section of the statute state the separate grounds on which the defendant may be liable.The evidence in any particular case may make it uncertain on which ground the liability of the defendant depends, if there is any liability; therefore the plaintiff ought to be permitted to allege all the grounds of liability which there is any evidence to support, and these, we think may properly be alleged separately in separate counts.Whether they can all be alleged conjunctively in one count it is unnecessary now to...