Garrett v. M. McDonough Co.

• Decision Date: 29 March 1937
• Citation: 297 Mass. 58,7 N.E.2d 417
• Parties: MAURICE F. GARRETT v. M. MCDONOUGH COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 58

7 N.E.2d 417

MAURICE F. GARRETT v. M. MCDONOUGH COMPANY.

Supreme Judicial Court of Massachusetts, Middlesex.

March 29, 1937

February 3, 1937.

Present: RUGG, C.

J., PIERCE, FIELD DONAHUE, & LUMMUS, JJ.

Negligence, Res ipsa loquitur, Hose. Evidence, Presumptions and burden of proof.

The unexplained bursting of a three or four months old high pressure rubber hose, carrying oil from a pump to a hydraulic lifting device on a motor truck, was itself evidence of negligence of the owner, who was in sole control thereof.

TORT. Writ in the First District Court of Eastern Middlesex dated December 28 1935.

The action was heard by Davis, J., who found for the plaintiff in the sum of $325. A report to the Appellate Division for the Northern District, was ordered dismissed. The defendant appealed.

E. Z. Dymsza, for the defendant.

A. R. Kingston, (B.

B. Priest with him,) for the plaintiff.

PIERCE, J. This is an action for negligence whereby, on September 19, 1935, oil was thrown or sprayed upon the plaintiff's house at number 8 Wolcott Park, in the city of Medford, in this Commonwealth.

The evidence in its aspect most favorable to the plaintiff tended to show that the defendant's servants or agents were at the time and place above stated engaged in delivering crushed stone, in connection with the construction or repair of the street upon which the plaintiff lived; that in transporting said stone the defendant was using an automobile truck with a dump body which was mechanically tilted in the process of unloading the crushed stone; that this tilting was effected by means of a hydraulic lifting device which was activated by means of oil supplied under pressure through a hose constructed of rubber reinforced with wire and known as a high pressure hose; that this hose led from an oil pump under the cab of the motor truck to the hydraulic lifting device under the dump body; that the pressure of the oil in the hose was equalized by governors so that it was not affected by the speed of the motor; that the equipment was new when purchased by the defendant three or four months prior to the accident; that the hose appeared to be all right; and that on the date and at the place of the accident, while the hydraulic lifting device was in operation, the hose burst in a spot about one inch long, and the light oil used as the hydraulic fluid escaped under pressure in a thin stream and was sprayed upon the house of the plaintiff, upon the awnings and upon the lawn and shrubbery. No direct evidence was introduced by either the plaintiff or the defendant in regard to what caused the hose to burst.

The defendant requested seven rulings which were denied. The judge found for the plaintiff and assessed damages. The defendant, being aggrieved by the denial of its requests for rulings, claimed a report. The judge reported the case to the Appellate Division, which found no prejudicial error and ordered the report dismissed. The case is before this court on the defendant's appeal from the decision of the Appellate Division.

The first request that upon all the evidence the finding should be for the defendant, was refused properly under Rule 27 of the District Courts (1932) which reads, in part: "No review as of right shall lie to the refusal of a request for a ruling `upon all the evidence' in a case admitting of specification of the grounds upon which such request is based unless such...