Burke v. Hodge

• Decision Date: 28 February 1914
• Citation: 217 Mass. 182,104 N.E. 450
• Parties: BURKE v. HODGE et al.; PERONE v. HODGE; DOMEO v. HODGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

217 Mass. 182

104 N.E. 450

BURKE

v.HODGE et al.;

PERONE

v.HODGE;

DOMEO

v.HODGE.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 28, 1914.

Exceptions from Superior Court, Middlesex County; Frederick Lawton, Judge.

Actions by John Burke, by Luigi Perone, and by John Domeo against Stephen D. Hodge and others. There were verdicts for defendants, and plaintiffs excepted. Exceptions sustained.

Patrick J. Duane and Bernard F. Murphy, both of Waltham, for plaintiff burke.

Joseph G. Wright, of Boston, for plaintiffs Perone and Domeo.

H. R. Bygrave and H. D. McLellan, both of Boston, for defendants.

SHELDON, J.

After the decision reported in 211 Mass. 156, 97 N. E. 920, Ann. Cas. 1913B, 381, and in accordance with the direction therein given, these cases were tried anew in the superior court on the single issue whether the negligence of the defendants in making concrete for the part of the wall which fell was a contributory proximate cause of the accident. The other findings made at the former trial remained in full force, and the facts involved in those findings were not in dispute.The question for the jury was simply whether one of the proximate causes of the falling of the wall was the negligence of the defendants in mixing the concrete.

As bearing upon this issue, the plaintiffs' counsel could argue to the jury the question as to the manner in which the concrete was mixed by the defendants and as to ‘the results which might be expected to follow from such mixing,’ in order to show that the falling of the wall was a result which naturally would follow, and reasonably should have been expected to follow, from such mixing. The statement of the bill of exceptions, however, is meager, and we might hesitate, if this were all, to say that it showed such error on the part of the judge as to call for a new trial. But we need not determine this question.

The instructions given to the jury required them, in order to answer the issue affirmatively, to find that this negligence of the defendants was the sole efficient cause of the accident. He said that the question was whether this was the real cause, the compelling cause, of the accident. He told the jury that the answer to the issue should be ‘No,’ if there was intervening negligence of McArthur Bros. without which the wall would not have fallen. And after his charge had been finished, when his attention was called to this matter, he further said to the jury: ‘You must find that the wall fell because of the negligent mixing and [that] it...