Robinson v. Doe

• Decision Date: 20 May 1916
• Citation: 224 Mass. 319
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: GEORGE H. ROBINSON v. JOHN DOE & another.

224 Mass. 319

GEORGE H. ROBINSON v. JOHN DOE & another.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1916

March 31 1916.

Present: RUGG, C.

J., BRALEY, DE COURCY, PIERCE, & CARROLL, JJ.

Agency, Scope of employment. Negligence, In throwing a brick. Practice, Civil Judge's charge: comment on absence of witness. Evidence Admission by failure to call witness, Res gestae.

If an employee of the proprietors of a circus is engaged with other employees in pulling up the stakes of the circus tent preparatory to taking it down, while a performance is going on inside, and also is attempting to drive away a crowd of boys who have gathered about the tent and who keep coming back as often as they are driven off, and if, while so engaged, he picks up a brick and throws it at the boys and it hits on the head a man who is standing leaning against a fence on a public street fifty or sixty feet away, in an action by this man against the proprietors of the circus for his injuries thus sustained, it can be found that the person who threw the brick was acting within the scope of his employment in doing so, although the particular means he made use of might not have been contemplated by his employers.

In the case above described the judge said in the course of his charge to the jury, "You may infer from the fact of no witness having been called by the defendants touching the relations between the defendants and the man in their employ who is said to have thrown the brick, you may infer if he was called that his testimony would not help the defendants."

Held, that, while the judge well might have omitted this instruction, it could not be held to have been erroneous.

In the same case it was held that evidence that the employee of the defendants in driving the boys away said, "Get to . . . out of here" and made other similar remarks was admissible as evidence of statements accompanying and explaining his acts.

TORT against John Doe and Richard Roe, doing business under the name of the Barnum and Bailey Company, for personal injuries sustained by the plaintiff on June 4, 1910, at about half past nine o'clock in the evening, when the plaintiff was standing on Providence Street in Boston leaning against a fence, from being struck in the head by a brick or stone thrown by a person alleged to be a servant, employee or agent of the defendants acting in the course of his employment. Writ dated June 6, 1910.

In the Superior Court the case was tried before Irwin, J. At the close of the evidence, which is described in the opinion, the defendants asked the judge for twenty-one rulings, of which the judge made four and dealt with others as described in the opinion.

The first three requests for rulings were as follows:

"1. On all the evidence the jury must find for the defendants. "2. It does not appear that the person, if any, who threw the brick or missile which struck the plaintiff was the servant or employee of the defendants.

"3. If the person who threw the brick or missile which struck the plaintiff was a servant or employee of the defendants, it does not appear that the act of throwing the brick was one for which the defendants were liable."

The judge refused to make these and others of the rulings requested, and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $200. The defendants alleged exceptions.

The case was submitted on briefs.

J. B. Studley & M.

Wambaugh, for the defendants.

H. F. R.

Dolan, J. H. Morson & J. S. O'Neill, for the plaintiff.

CARROLL, J. On the evening of June 4, 1910, the plaintiff while on Providence Street, Boston, was struck by a brick or stone. In a tent on an adjacent lot a circus performance was going on. Workmen were at this time pulling up the stakes, and a man, who appeared to be in charge, was directing them and also attempting to drive away a crowd of boys who had gathered about the circus tent. This man had a stick which he used several times to frighten or to force the boys to leave the premises. On one occasion when they did not move he ran toward them, picked up something and threw it at them. The plaintiff, who was fifty or sixty feet away, was hit by either a brick or stone thrown by this man.

1. There was evidence that the plaintiff was injured by the act of the defendants' servant. The words "Barnum and Bailey's Circus" were on the wagons and the posters the performance was going on at the time: in addition, a license was granted to "Barnum and Bailey's Greatest Show on Earth" to exhibit on these same grounds from May 30 to June 4. It could be found that the tents and other property were owned by the defendants. Stewart v. Hugh Nawn Contracting Co. 223 Mass. 525 . Smith v. Paul Boyton Co. 176 Mass. 217 . Ingraham v. Chapman, 177 Mass. 123 . Murphy v. Fred T. Ley & Co. Inc. 210 Mass. 371 . It appeared that the man who threw the missile came from inside the tent.

He wore a khaki shirt and overalls, and "a slouch bat peaked in the center;" the sleeves of his shirt were rolled up. The men with him, fifteen or twenty in number, were dressed the same way. He was trying to keep the boys from entering the tent, from disturbing the exhibition and from interfering with the men in their work. Where a person appears to be in charge or control of a portion of a circus tent and the contiguous grounds, and on the night when the license expires is openly engaged with others in...