Brick v. Bosworth

• Decision Date: 27 November 1894
• Citation: 39 N.E. 36,162 Mass. 334
• Parties: BRICK v. BOSWORTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 334

39 N.E. 36

BRICK v. BOSWORTH.

Supreme Judicial Court of Massachusetts, Hampden.

November 27, 1894

Plaintiff's decedent, while in the employ of defendant, was killed by the falling of a derrick, and plaintiff served the following notice on defendant, viz "You are hereby notified that on the eighth day of November, 1892, my husband, Jeremiah J. Brick, while in your employ, was instantly killed, or died without conscious suffering. The place where my said husband was instantly killed or died without conscious suffering was between Cabot street and the railroad of the Connecticut River Railroad Company, near the Connecticut river, in said Holyoke, and at the place where a new mill was being erected, supposed to belong to the Riverside Paper Company, of said Holyoke. The cause of the death of my said husband was the falling of a derrick upon him on account of the same being improperly or insecurely fastened."

COUNSEL

T.B O'Donnell, for plaintiff.

W.H Brooks, for defendant.

OPINION

KNOWLTON, J.

It does not appear in this case that any requests for instructions to the jury were made by either party before the judge's charge. The bill of exceptions states that "during the delivery of the charge the plaintiff's counsel prepared the following requests for rulings which he believed were proper because of the matter in the charge and the omissions therein, and at the close of the charge requested the court to give them: First, that the notice was sufficient as a matter of law; second, if the superintendent was negligent in any orders he gave in relation to the putting in of the post, or the moving of the derrick, under the second count, and which negligence caused the accident, the plaintiff is entitled to recover on this part of the case; third, if the plaintiff's deceased exercised the same care that people of ordinary prudence would exercise under the same circumstances, the plaintiff may recover; fourth, even if the deceased assisted in placing the post, under the direction of Mr. Phillips, and did not understand and appreciate the danger of the risk, the plaintiff is entitled to recover on this branch of the case." The court declined to give any of them. The exceptions allowed are to "this refusal to rule as requested, and the rulings of the court as made," and to "the rulings and instructions in regard to the assumption of the risks of the business by the plaintiff's deceased." The bill of exceptions contains all of the evidence, and the judge's charge reported in full. If the exception to "the rulings of the court as made" is to be treated as an exception to the charge as a whole, it cannot avail the plaintiff for the correction of specific errors which were not pointed out, unless it appears that there was some substantial error which misled the jury and resulted in a mistrial. Rock v. Orchard Mills, 142 Mass. 522, 8 N.E. 401; Curry v. Porter, 125 Mass. 94. But tt may be fairly treated as saving to the plaintiff exceptions to those rulings which were at variance with the rulings requested, and to which the attention of the judge was specially directed by the requests.

The judge submitted to the jury the question of the sufficiency of the notice in regard to its statement of the cause of the injury, and in closing this part of the charge used these words: "If you are satisfied under this evidence, by a fair preponderance, that the defendant was not misled, then the notice is sufficient. If you are not so satisfied, then your verdict should be for the defendant." The notice was treated as if it required the aid of a finding of fact under St.1887, c. 270, § 3. No testimony was introduced for the purpose of showing that the defendant was not misled, and the jury were not instructed in regard to the kind of proof that might be resorted to for maintenance of this proposition, and there is nothing to indicate that the subject had been discussed in their hearing. The judge had previously said...