Smith v. Gammino

• Decision Date: 29 November 1916
• Citation: 225 Mass. 285
• Parties: ARTHUR A. SMITH v. FRANK A. GAMMINO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 285

ARTHUR A. SMITH v. FRANK A. GAMMINO.

Supreme Judicial Court of Massachusetts, Bristol.

November 29, 1916

October 23, 1916.

Present: RUGG, C.

J., LORING, BRALEY PIERCE, & CARROLL, JJ.

Evidence Photographs, Competency, Remoteness. Negligence, In maintaining unguarded steam pump in highway, Customary method as defence.

At the trial of an action for personal injuries sustained by a boy eight years of age from being struck by a jet of hot water from a steam pump maintained in a public street by the defendant, who was constructing a sewer, the plaintiff introduced in evidence without objection, certain photographs of the pump and its surroundings, which could be found to have been taken four days after the injury. A witness for the plaintiff testified that "the appearance of the pump and of the street in the photographs" was the same as when he saw them the day after the injury.

Subject to the defendant's exception, the presiding judge admitted the testimony of another witness that, from his observation of the pump four or five times a week for approximately four weeks preceding the injury and for two weeks after it, the representations in the photographs corresponded with his recollection. Held, that the evidence was clearly admissible its weight and application being for the jury under proper instructions.

In the same case it was held that the defendant's night watchman, called by the plaintiff as a witness, who had a fireman's license of the first class, properly was allowed to explain the location of the shut-off valve, which was not shown in the photographs, and also to state that the pump was a suction pump which would have to be primed with water "in order to get a lift," this being competent to show the construction and method of operation of the pump.

In the same case it also was held, that the presiding judge was right in excluding the question, asked the defendant by his counsel "Now, was the way in which this pump was put in place and guarded by this fence the usual way in which pumps were installed and guarded in work of that kind?" and in ruling that "proof of the usual mode of installing and guarding similar pumps would not be a defence if the jury found that the defendant knew or in the exercise of due diligence should have known that, because of its location, the operation of the pump might endanger the safety of persons using the street."

TORT for personal injuries sustained by the plaintiff on June 26, 1913, when he was eight years of age, from being scalded by hot water from a steam pump maintained by the defendant in Cove Road, a public highway in New Bedford, where the defendant was engaged in constructing a sewer, it being alleged that the pump was left carelessly in the highway without guard, fence or warning and that it was operated negligently and recklessly. Writ dated October 11, 1913.

In the Superior Court the case was tried before King, J. It appeared that the plaintiff was playing marbles with another boy in the street and that one of the marbles rolled down under the...