O'brien v. Look

• Decision Date: 18 May 1898
• Parties: O'BRIEN v. LOOK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 36

50 N.E. 458

O'BRIEN v. LOOK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1898

COUNSEL

J.E. Cotler and J.W. McAnarney, for plaintiff.

John Lowell, for defendants.

OPINION

KNOWLTON J.

The bill of exceptions recites that, at the close of the evidence, the defendants' counsel presented four requests for rulings, of which the second is as follows: "There is no evidence to go to the jury of any defect in the ways works, and machinery." The defendants' brief contains the same recital in the same words, and then says "The second request the court gave, and refused to give the other three, to which defendants duly excepted, and pray that their exceptions may be allowed." The defendants argument is confined to the exceptions to the refusal to give the other three rulings requested. In the bill of exceptions it is said that the judge refused to give the rulings requested, but that he gave full instructions on the subjects mentioned in the requests, to which no exceptions were taken so far as they were inconsistent with the requests. We are in doubt as to what instruction was given in regard to the subject of the second request, but we think we are justified in acting upon the admission of the excepting party, and in assuming that the inaccuracy is in the bill of exceptions rather than in the defendants' brief, which admits that there was no exception on this part of the case, and makes no argument or request in regard to it.

The questions argued by the defendants are whether there was evidence to charge them on the ground of negligence of their superintendent in the performance of his duty as superintendent, and whether there was error in the admission of evidence against their objection.

1. There was ample evidence, which need not be stated, to show that Lowrey was a person whose principal duty in the service of the defendants was that of superintendence.

2. The difficult question in the case is whether there was evidence that his negligence in the performance of his duty as superintendent caused the accident, or contributed to it. The evidence is undisputed that the work, at the time and place of the accident, was being done under his immediate personal direction and superintendence. There is no doubt that the plaintiff was in the exercise of due care. Is there any evidence of negligence on the part of Lowrey? If there is, do we find any evidence that his negligence was in the capacity of superintendent? It may be that the men whose duty it was to put the fore and after into its socket when it was lowered were negligent. Whether they were or not does not distinctly appear. However that may be, we think there was evidence of negligence in lowering the fore and after in the manner described; so that, if it failed to enter its socket, it...