Mcnicholas v. New England Tel. & Tel. Co.

• Decision Date: 20 June 1907
• Citation: 196 Mass. 138,81 N.E. 889
• Parties: McNICHOLAS v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 138

81 N.E. 889

McNICHOLAS v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 20, 1907

COUNSEL

W. H Shea, for plaintiff.

Powers & Hall, for defendant.

OPINION

RUGG J.

1. The question of the defendant's negligence was properly left to the jury. The defendant introduced no evidence except medical testimony. The plaintiff testified that he was seven years old at the time of the accident, which occurred on April 18, 1902, at a little after half-past 3 in the afternoon; that as he was standing in the middle of the street 'a piece of marble like came down and struck me in the forehead' (making a motion from above downward with his hand); that there was a man working on the wires on a pole, which was about 12 or 15 feet away, and that it was the man on the pole who hit him; that there was a team near the pole on which was printed the name of the defendant; that he saw nobody working on the roofs in the vicinity, and that there were no other children near by except two boys who were with him; that after going home and receiving some attention for his wound, he returned with his mother to the place of the accident and pointed out the man, who was still working on the pole, to his mother; that the man came down the pole followed them home, and came into the house; that he went out and soon after returned with another man, who took the name and address of the plaintiff and that of his mother. Parts of the boy's testimony were somewhat shaken or modified by cross-examination; but the jury were warranted in giving weight to those portions most favorable to himself, if his appearance, in their opinion, justified it. Other evidence tended to show that the team, marked with the name of the defendant, was in substantially the same place in the morning and that there were no other men working in the vicinity that the pole in question was owned by the Boston Electric Light Company, but carried 14 wires of the defendant, 2 of which were on the under side of an arm of the electric light company. A subforeman of the defendant, who had been in its employ as a lineman for many years, testified, without objection, that the defendant in 1902 was using a porcelain insulator 'which was white in color somewhat resembling marble, and that when wires were run on the under side of a cross-arm they were attached sometimes to porcelain insulators'; that the lineman of the defendant had 'instructions from their foreman as to their conduct in cases of accident; that these instructions directed them to call a doctor, to report the matter to the general or head foreman or superintendent and get instructions, to send the injured person to a hospital if necessary, and to take the names and addresses of injured persons.' This combination of circumstances justified an inference on the part of the jury that the man on the pole, in view of the defendant's ownership of wires, the presence of the wagon during his labor, and his actions after the accident, which were in accordance with the duties of a lineman of the defendant, was an employé of the defendant, and that he occasioned the dropping of an insulator, which caused the injury to the plaintiff. The plaintiff is not bound to point out the exact way in which the accident occurred nor to exclude the possibility that it might have happened in some other way than that claimed by him. He is only obliged to show by a preponderance of evidence that it occurred through the neglect of the defendant. In McGee v. Boston Elevated Ry. Co., 187 Mass. 569, 73 N.E. 657, Wadsworth v. Boston Elevated Ry., 182 Mass. 572, 66 N.E. 421, and Saxe v. Walworth Mfg. Co., 191 Mass. 338, 77 N.E. 883, the cause of the accident was left wholly to conjecture. In the first two of these cases the object causing the injury to the plaintiff was shavings and snow respectively, common materials that might have come from other sources than the business of the defendant. The decision of Hofnauer v. R. H. White Co., 186 Mass. 47, 70 N.E. 1038, was rested on the doctrine of assumption of risk. Kendall v. Boston, 118 Mass. 234, 19 Am. Rep. 446, also relied upon by the defendant, is distinguishable on the ground that there were many...