Hankinson v. Lynn Gas & Electric Co.

• Decision Date: 28 February 1900
• Citation: 175 Mass. 271,56 N.E. 604
• Parties: HANKINSON v. LYNN GAS & ELECTRIC CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

175 Mass. 271

56 N.E. 604

HANKINSON v. LYNN GAS & ELECTRIC CO.

Supreme Judicial Court of Massachusetts, Essex.

February 28, 1900

COUNSEL

J. H. Sisk, for plaintiff.

J Lowell and J. H. Pearl, for defendant.

OPINION

LORING, J.

The defendant requested the presiding justice to direct a verdict for the defendant, and excepted to his refusal to give that ruling.This was the only ruling requested, and this is the only exception taken in connection with the charge of the judge.The jury were instructed that, if the carbon which struck the plaintiff in the eye was thrown by Bayrd 'for the purpose of carrying out and performing his duty in his employment,'the defendant was liable, and, on the other hand, if the carbon was thrown by Bayrd 'to carry out some whim of his own, in accordance with some impulse of his own, and not for the purpose of carrying out or accomplishing the purpose for which he was then and there employed, the defendant would not be liable.'This was in accordance with the rule laid down in Howe v. Newmarch,12 Allen, 49, which has been followed and acted upon in many subsequent cases.This is admitted by the defendant, and no exception is taken to this ruling.The only contention made by the defendant is that there was no evidence on which the jury could find that the carbon was thrown by Bayrd for the purpose of performing the work he was hired by the defendant to perform.But, if the jury disbelieved Bayrd's explanation of the purpose which he had in mind in throwing the carbon, there was ample evidence that the carbon was thrown by Bayrd in performance of the work he was hired to perform.He was hired to remove the remains of the four carbons left in the lamp in question after it had burned during the preceding night, and to replace them by four new carbons for the coming night.The plaintiff was struck as he was driving by, and just outside of, the defendant's cart, which Bayrd had left standing at the foot of the pole on which he was at work discarding the old carbons.These carbons are discarded by being dropped or thrown into the street.Bayrd testified: 'I ordinarily drop these disused pieces of carbon somewhere near the base of the post on which the lamp is.If there is any good reason why I cannot drop them there, I toss them out into the street.I intend to be careful not to drop them on a passer-by, or to strike a horse as he is driven along by that pole.'This warranted the jury in finding that the carbon which struck the plaintiff in the eye was being discarded by Bayrd in the performance of the duty which he was hired by the defendant to perform, and in finding for the plaintiff under the rule stated in the charge...