Cook v. Newhall

• Decision Date: 29 January 1913
• Parties: COOK v. NEWHALL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 392

101 N.E. 72

COOK v. NEWHALL.

Supreme Judicial Court of Massachusetts, Essex.

January 29, 1913

Jan 29, 1913.

COUNSEL

N. D A. Clarke and Jas. C. Batchelder, of Lynn, for plaintiff.

Walter H. Southwick, of Lynn, and Sweeney & Cox, of Lawrence, for defendant.

OPINION

RUGG C.J.

The unexplained automatic starting into motion from a state of rest by a machine when according to the mechanical laws of its construction it ought to remain still is not only evidence of a defect or want of repair in the machine, but also of negligence of the owner or person in charge of it in failing to discover and remedy such defect or want of repair. This is firmly established. Ryan v. Fall River Iron Works, 200 Mass. 188, 86 N.E. 310; Chiuccariello v. Campbell, 210 Mass. 532, 96 N.E. 1101, Ann. Cas. 1912D, 510. The whole body of the evidence may be such that no particular negligence can be found, and yet the accident may indicate some negligence, the details of which cannot be ascertained. James v. Boston Elev. Ry., 204 Mass. 158, 162, 90 N.E. 513.

It is true also that 'an unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from relying upon the presumptions applicable to it.' Cassady v. Old Colony St. Ry., 184 Mass. 156, 163, 68 N.E. 10, 13 (63 L. R. A. 285); Galligan v. Old Colony St. Ry., 182 Mass. 211, 65 N.E. 48; Parsons v. Hecla Iron Works, 186 Mass. 221, 223, 224, 71 N.E. 572; McNamara v. Boston & Maine R. R., 202 Mass. 491, 497, 89 N.E. 131. But it is only the unexplained automatic acting of machinery when it should remain at rest which gives occasion for the application of the rule.

Instances may arise when the whole situation is fully disclosed, and the starting may appear definitely as due to a particular cause or to one of several distinct and defined causes, and all other causes, conjectural or uncertain in their nature, may be excluded upon evidence which is not open to dispute. Or a plaintiff may place his ground of recovery upon a special cause, and not rely upon the automatic starting. This is not the common case. But Ross v. Pearson Cordage Co., 164 Mass. 257, 41 N.E. 284, 49 Am. St. Rep. 459, illustrates the application of this aspect of the rule. If this is the posture of the case, then the automatic starting of the machine as an unexplained cause of injury does not remain as evidence of a tortious act, but is resolved plainly and without doubt into its component parts, and one or more of these parts must appear to be tortious before there can be recovery. The doctrine of res ipsa loquitur has no application where every circumstance and fact are in evidence. Gibson v. International Trust Co., 177 Mass. 100, 103, 58 N.E. 278, 52 L. R. A. 928. Indeed, that doctrine arises only 'in the absence of explanation or other evidence which the jury believe' as a rational inference that a certain event does not commonly happen except by negligence. Graham v. Badger, 164 Mass. 42, 47, 41 N.E. 61.

The plaintiff in the case at bar apparently did not rely upon the mere starting of the machine, but pointed to the slot where the shipper was held as the specific difficulty. Although this is not stated with unequivocal clearness, it is fairly to be inferred from the whole of the charge which proceeds upon the assumption that the plaintiff 'goes forward and says * * * the place for you to look is at that slot' and not that somewhere about the mechanism as a whole something is the matter which he did not undertake definitely to point out. No exception was taken to this part of the charge. The only exception saved was 'to all those portions of the charge which stated in substance that the automatic starting of the machine was not evidence of negligence.'

The trial judge instructed the jury that 'This is not a case as it seems to me, of an accident happening unexplained.' He then proceeded to describe the machine briefly as disclosed by the evidence. It was a corn cutter operated by steam power. It was brought into the courtroom and exhibited to court and jury, and they saw everything about it, except that it was not...