McLellan v. Fuller
| Decision Date | 11 March 1915 |
| Citation | 220 Mass. 494,108 N.E. 180 |
| Parties | McLELLAN v. FULLER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R. W. Gloag and T. J. Clarke, both of Boston, for plaintiff.
Robert Homans, of Boston, for defendant.
The jury rightly might find that at the first trial there was available to the defendant, Fuller, as attorney for the plaintiff, the testimony of Delia Lavalle, of Addie Puffer of Margaret Frances Bean and of the plaintiff; that their testimony, if believed, established that the plaintiff was in the employ of the Moore Spinning Company; that one Ogley was an overseer exercising the duties of a superintendent; that the duty of the plaintiff required him to obey the reasonable orders of the overseer; that on March 29, 1905, he was directed by that officer to change over the gears on one of the spinning frames; that for that purpose the machine was stopped; that on receiving the order he took the gears to the end of the machine nearest the wall, to adjust them to the spinning frame; that while he was thus engaged, with mind intent on his work, the machine started up without warning or without any person's giving actual notice to him that it was to start; that he then received injuries; that the overseer, while standing by the side of the machine and observing the situation of the plaintiff, had ordered it to be started up; that there was a rule of the mill that before starting a machine at rest for repairs notice should be given to those working on it; that notice was not given by the person directed to start the machine; and that when the overseer gave the order for starting up he knew the rule was not obeyed by the starter and also knew that the plaintiff was in a situation of danger against which without warning he could not guard or protect himself and at the same time do the allotted work.
Under such conditions the jury would have been justified in finding that the plaintiff was in the exercise of due care and that the defendant company was negligent. Davis v. N. Y., N.H. & H. R. R., 159 Mass. 532, 34 N.E. 1070. They might have found that the defendant Fuller was negligent in not putting before the jury at the first trial the testimony of the plaintiff; they also might have found him negligent in not giving the statutory notice, or, if it found that such notice was given, that he was negligent in not perpetuating testimony adequate to prove its service when proof thereof was required at the trial.
The rights of the defendant upon either hypothesis were carefully guarded in the judge's charge.
The defendant's first request, that 'there is not sufficient evidence to justify a verdict for the plaintiff,' for reasons stated could not have been given. The second request could not have been given because the question of the defendant's neglect to anticipate and provide against the death of his brother was not necessarily the only factor in the determination of the question of his due care. He might have been without fault in that regard and lacking in due care in other respects.
As the jury could have found the overseer superintendent negligent, the defense set up in the remaining requests is not open, that a fellow servant was negligent, or that without the concurring fault of a fellow servant the accident would not have happened. Myers v. Hudson Iron Co., 150 Mass. 125, 137, 22 N.E. 631, 15 Am. St. Rep. 176. It follows that the judge rightly refused to give them.
The defendant in his brief states that the judge in his charge made assertions of fact not justified by testimony or agreement of parties, and argues that he is entitled as matter of law, because of his general request that a verdict be directed for the defendant, to have the accuracy of the statements determined and their legal effect adjudicated by this court, notwithstanding his omission to direct...
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