Barton v. Kirk

31 N.E. 1072, 157 Mass. 303, 1892 Mass. LEXIS 62

• Court: Massachusetts Supreme Judicial Court
• Decided: October 21, 1892
• Status: Published

Opinion

Morton, J.

The evidence does not disclose anything from which the cause of the accident to the plaintiff’s intestate can be reasonably inferred. The only person in the room at the time of the accident testified that she saw him going up the ladder with the oil can in his hand; that she heard the can drop, and looked up and saw him falling between the tie girt and the shafting. Whether his fall was due to the slipping of the ladder or to some act of carelessness on his part is left entirely to conjecture. As the burden of proof was on the plaintiff to show that his intestate was in the exercise of due care, it is clear that upon this state of the evidence the burden is not sustained. Shea v. Boston & Maine Railroad, 154 Mass. 31. Tyndale v. Old Colony Railroad, 156 Mass. 503.

In this view of the case, the evidence that was offered by the plaintiff and excluded becomes immaterial.

In Weblin v. Ballard, 17 Q. B. D. 122, it is evident that the judge of the county court must have found from his inspection of the premises and the other evidence before him that the accident occurred through the slipping of the ladder.

Judgment on the verdict.