Mcguerty v. Hale
| Decision Date | 05 March 1894 |
| Citation | 36 N.E. 682,161 Mass. 51 |
| Parties | McGUERTY v. HALE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A. & J.R Churchill, for plaintiff.
L.W Howes, for defendant.
It appears that "the plaintiff called as an expert one Robinson, and asked him this question: 'Should you consider that a boy eighteen years old--a short boy, like the plaintiff, here--was a proper person to put to work on such a machine as that before you?' " The court excluded the question. This was right. The question was not one for an expert to answer.
The plaintiff's counsel also asked Edwards, a witness for the plaintiff, concerning Egan, "What should you call him Mr. Edwards?" "The court excluded the question, but said to the plaintiff's counsel that he might inquire of the witness as to Egan's appearance, his ability and capacity to work, and his general mental capacity, so far as he observed it." The question was very indefinite, and the court plainly intimated its willingness to admit everything that was material concerning the competency or incompetency of Egan to do the work he was set to do.
The defendant, upon his direct examination, was asked by his counsel whether Edwards was a careful man or not, and, against the plaintiff's objection, was allowed to answer the question. It does not appear what the answer was, but it appears that the plaintiff's counsel, on cross-examination, pursued the inquiry, and asked the defendant whether Mr. Edwards was a fairly careful man, and the defendant answered, "I should say so." It also appears that "the plaintiff did not claim that Edwards was incompetent." One of the allegations of the plaintiff's amended declaration is that "the defendant did not use reasonable care to furnish, and did not furnish, competent fellow workmen." The evidence that Edwards was a careful man was therefore admissible, under this issue. If the fact of his competency was conceded at the trial, still there was no harm in proving it, although the proof was unnecessary.
The exceptions recite that "the plaintiff offered to prove that Edwards, about six years after the accident to the plaintiff, told the defendant that the safety of the workmen required that the gearing upon the machine in question should be covered, and that it was then covered by the defendant; but this evidence was excluded." This ruling should be considered in connection with the instruction to the jury that "the defendant was not bound, in law, to cover it, [they gearing,] and could not be made liable merely for neglecting so to do." The gearing was in plain sight, as the plaintiff testified. The ruling and instruction were correct, upon the facts in evidence. Shinners v. Proprietors, 154 Mass. 168, 28 N.E. 10; Downey v. Sawyer, 157 Mass. 418, 32 N.E. 654; Sullivan v. Manufacturing Co., 113 Mass. 396; Gilbert v. Guild, 144 Mass. 601, 12 N.E. 368; Ciriack v. Woolen Co., 146 Mass. 182, 15 N.E. 579.
The court also instructed the jury "that if the dizziness of the plaintiff, at the time he was injured, was caused by the failure of Edwards to comply with the directions of the defendant as to ventilating the room by opening the windows the defendant would not be liable for such failure." The plaintiff had testified "that there was a strong smell of benzine, which had the effect of making me dizzy and confused,--made my head feel very queer;" and there was testimony that "this effect varies with different individuals, and is greater in a close atmosphere." The windows in the room were made to drop down from the top, and the testimony...
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