Carmody v. Boston Gaslight Co.

• Decision Date: 02 January 1895
• Citation: 162 Mass. 539,39 N.E. 184
• Parties: CARMODY v. BOSTON GASLIGHT CO. (four cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 539

39 N.E. 184

CARMODY v. BOSTON GASLIGHT CO. (four cases).

Supreme Judicial Court of Massachusetts, Suffolk.

January 2, 1895

COUNSEL

Cornelius P. Sullivan, for plaintiffs.

Robert F. Herrick and Philip S. Rust, for defendant.

OPINION

BARKER J.

The plaintiff asked the court to instruct the jury "that there was evidence enough of want of proper care on the part of the defendant to make it responsible, on the ground that it was bound to conduct its gas in a proper manner, and that the fact that the gas escaped was prima facie evidence of some neglect on the part of the defendant." This request was copied from a ruling given in Smith v. Gaslight Co., 129 Mass. 318, where this court said of it that, as applied to the facts of that case, it could not be said to be wrong. The presiding justice in the present case declined to give the instruction, but instructed the jury in other terms which fully and correctly dealt with the phases of the cause to which the request was addressed. While the ruling requested is sufficiently correct, if it be construed as declaring that there was enough evidence of want of proper care to be submitted to the jury, it would invade the proper province of the jury if it was understood by them to mean that there was evidence enough to require them to find the defendant negligent, and the presiding justice was not bound to give a ruling which, as applied to the case upon trial might have been so understood. Nor was he bound to use the Latin phrase upon which the plaintiff insisted, but might well say, in place of it, that the fact that gas escaped was evidence of neglect, "and evidence the force of which it was for them to determine, in connection with any other evidence in the case bearing on the same subject." The plaintiff's exception did not go to the charge as given, but merely to the refusal of the request. He nevertheless argues that the statement of the charge, that "the mere fact that a pipe leaks and gas escapes is not of itself sufficient to establish the liability of the company," was incorrect. But there was evidence, with which the jury had to deal tending to show that the defendant had used due care to conduct its gas in a proper manner, and that the escape of gas by which the plaintiff was injured was due to the acts of third persons, of which the defendant had no notice, and not to any negligence of the defendant. It is apparent from the...