Delisle v. Ward

• Decision Date: 15 June 1897
• Citation: 168 Mass. 579,47 N.E. 436
• Parties: DELISLE v. WARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 579

47 N.E. 436

DELISLE v. WARD.

Supreme Judicial Court of Massachusetts, Middlesex.

June 15, 1897

COUNSEL

William

H. Bent, for plaintiff.

John C Burke, William S. Marshall, and James F. Corbett, for defendant.

OPINION

BARKER J.

The plaintiff was at work between two piles of logs upon the bank of an excavation in which stood a pile driver, which was some 40 feet high, the bottom of the excavation being 14 or 16 feet lower than the top of the bank. When there was occasion to use one of the logs, a rope, running over a pulley at the top of the pile driver, was fastened to the butt of the log and the log drawn from its place by winding the rope upon a drum. The butt of a log so drawn from one of the piles between which the plaintiff was at work struck the pile driver, and the smaller end of the log swung around, and broke the plaintiff's leg. The only exception is to the refusal to allow the plaintiff's counsel to argue that it was negligence on the part of the defendant that no guy rope was used to steady the log. In opening, the plaintiff's counsel said that he should show that it was customary to use a guy rope under circumstances like those existing when the accident happened; but when he called witnesses to show this they failed to qualify as experts, and did not testify upon the subject; but it did appear from the evidence that sometimes, under some circumstances, a guy rope was used in hoisting logs with a pile driver. At the close of the evidence the court asked the plaintiff's attorney upon what evidence of negligence on the part of the defendant the plaintiff relied, and the attorney stated that, among other things, he proposed to appeal to the common knowledge and experience of the jury concerning the use of a guy rope, and to argue that it was gross carelessness not to have used one at the time of the accident. The court refused to allow such an argument to be made, and the exception was to that refusal. The plaintiff contends that the refusal was practically a ruling that the question whether it was negligence on the part of the defendant not to use a guy rope was not for the consideration of the jury. The case went to the jury only upon the question whether it was negligence on the part of the defendant's superintendent to give the order to hoist the log before the plaintiff got out of the way, and the jury found a verdict for the defendant. If the necessity of using a...