Ouillette v. Overman Wheel Co.
| Decision Date | 20 October 1894 |
| Citation | 38 N.E. 511,162 Mass. 305 |
| Parties | OUILLETTE v. OVERMAN WHEEL CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Plaintiff, an employé, was injured in defendant's factory by the falling upon him of shafting and pulleys fastened to beams overhead, while engaged in the performance of his duties. The shaft was 2 15/16 inches in diameter, and 11 feet above the floor.
W.H Brooks, for plaintiff.
L White and Robinson & Robinson, for defendant
The instructions given by the court covered the rulings asked for by the defendant, and stated the law correctly. Whether the defendant was or was not liable was matter of proof. The burden was on the plaintiff. If he failed for any reason to sustain it, the defendant was entitled to a verdict, not because prima facie it appeared that there had been no neglect on his part, but because the plaintiff had not shown any. So far as any presumption existed, it was that the defendant performed its duty, as the court told the jury. The jury were also told, in effect, that, under the circumstances of this case, the breaking of the machinery was no evidence of neglect on the part of the defendant, which was going further than to say, as the defendant asked the court to rule, that the defendant was not bound to explain the cause of the accident.
We think, however, that the question to the witness Cumnock should have been admitted. One of the issues at the trial was whether the defendant had properly inspected the shaft. The defendant introduced testimony tending to show that it had done so before the shaft was started, and from day to day while it was running. The witnesses testified, among other things, that the shaft ran without vibration, and that standing on the floor, they could see if it or the pulleys oscillated an eighth of an inch. As bearing further on the sufficiency of the inspection made by the defendant, it called the witness Cumnock, who had had a long experience in dealing with machinery of that character, and who was admitted to be an expert. The defendant's counsel asked him the following question: "Can you state whether or not an experienced person, looking at a shaft revolving, and pulleys upon that shaft revolving two hundred and fifty revolutions a minute, whether a person can see whether it ran true or not?" This was objected to, and excluded, and the defendant's counsel asked the further questions: "Whether a person standing upon the floor, an experienced person standing upon the floor, and watching this, can see any oscillation;" and this...
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