Clare v. New York & N.E.R. Co.
| Decision Date | 22 October 1896 |
| Citation | 167 Mass. 39,44 N.E. 1054 |
| Parties | CLARE v. NEW YORK & N.E.R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Francis M. Morrison, William
A. Gile, and Charles T. Tatman, for plaintiff.
Frank P. Goulding and Frank L. Dean, for defendant.
This is an action for personal injuries to the plaintiff's intestate, one Morrissey, which resulted in his death, and which are alleged to have been caused by a defect in the machinery of a hand car. At the trial the presiding judge directed a verdict for the defendant, and the case is here on exceptions. The only eyewitness of the accident was a fellow workman, who was turning the crank of the hand car on the left, while Morrissey was turning it on the right. According to his statement, he himself was pulling on the crank, and Morrissey was pushing, when Morrissey suddenly went out of the car over the crank, head first. The witness further stated that he did not know what caused the accident, that nothing happened to his side of the crank, so far as he noticed; and that it turned all right, smooth, without any trouble. We assume that there was evidence that the box, when pulled on as it would be in climbing a hard grade, would rise enough to allow the gears to slip. But there was no other evidence connecting the defendant with Morrissey's fall.
We are of the opinion that the judge was right in taking the case from the jury on the ground that it would be mere conjecture at the best, if the injury should be attributed to slipping of the gears. Such a case is not to be left to the jury unless the court can say that the jury are warranted, from their experience as men of the world, in saying that the accident is more likely to happen from the alleged defect than from other possible causes. If, on the other hand, the court can see that common experience does not warrant such a judgment, it is its duty to direct a verdict. In this case it seems to us that it cannot be said that the fall was more likely to happen from the slipping of a gear than from some one of the other causes for which the defendant was not responsible. Morrissey's clothes may have caught on the crank, as in Carey v. Railroad, 158 Mass. 228, 33 N.E. 512, or he may have lost his balance by too violent a motion, or he may have been seized with vertigo. The cause relied on has to be set against the total of other possible causes. We cannot admit that common...
To continue reading
Request your trial