Colvin v. Peabody

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: ALLEN, J.
• Citation: Colvin v. Peabody, 155 Mass. 104, 29 N. E. 59 (Mass. 1891)
• Decision Date: 30 November 1891
• Parties: COLVIN v. PEABODY.

155 Mass. 104

29 N.E. 59

COLVIN v. PEABODY.

Supreme Judicial Court of Massachusetts.

November 30, 1891

COUNSEL

J.P. Sweeney, for plaintiff.

Jesse C. Ivy, for defendant.

OPINION

ALLEN J.

1. Upon the uncontradicted facts it is quite clear that Wedger and Tully were acting for the defendant in firing the fire-works and the instruction that he was responsible for their negligence was correct.

2. The defendant now contends that the declaration alleges injury to the plaintiff from a bomb, while the evidence is consistent with the supposition that she was injured by a rocket; and that, therefore, the declaration is not supported. As to this ground of objection it would be enough to say that it does not appear to have been taken at the trial; but, if it had been, the evidence was sufficient to be submitted to the jury.

3. There was sufficient evidence for the jury of the negligence of the defendant's agents. The evidence tended to show that the mortars were discharged in too small an inclosure for perpendicular firing to be safe; that insufficient time was taken for preparation; that the firing was done in somewhat of a hurry; that due care in firing bombs requires that the mortars should be so aimed that the bombs will not fall upon the people; and that the bomb or shell which hit the plaintiff fell at a place far from where it was intended to fall, or safe for it to fall. The...