Burke v. Hodge

104 N.E. 450, 217 Mass. 182

• Court: Massachusetts Supreme Judicial Court
• Decided: February 28, 1914
• Status: Published

Opinion

Sheldon, J.

After the decision reported in 211 Mass. 156, and in accordance with the direction therein given, these cases were tried anew in the Superior Court on the single issue whether the negligence of the defendants in making concrete for the part of the wall which fell was a contributing proximate cause of the accident. The other findings made at the former trial remained in full force, and the facts involved in those findings were not in dispute. The question for the jury was simply whether one of the proximate causes of the falling of the wall was the negligence of the defendants in mixing the concrete.

As bearing upon this issue, the plaintiffs’ counsel could argue to the jury the question as to the manner in which the concrete was mixed by the defendants and as to “the results which might be expected to follow from such mixing,” in order to show that the falling of the wall was a result which naturally would follow, and reasonably should have been expected to follow, from such mixing. The statement of the bill of exceptions, however, is meagre, and we might hesitate, if this were all, to say that it showed such error on the part of the judge as to call for a new trial. But we need not determine this question.

The instructions given to the jury required them, in order to answer the issue affirmatively, to find that this negligence of the defendants was the sole efficient cause of the accident. The judge said that the question was whether this was the real cause, the compelling cause, of the accident. He told the jury that the answer to the issue should be “No,” if there was intervening negligence of McArthur Brothers without which the wall would not have fallen. And after his charge had been finished, when his attention was called to this matter, he further said to the jury: “You must find that the wall fell because of the negligent mixing and [that] it would have fallen as and when it did if the braces, the forms, had not been removed.” This was too stringent a rule. It was enough for the plaintiffs to show that the falling of the wall was due to the combined effect of the negligence of the defendants in mixing the concrete and of that of McArthur Brothers in removing the forms. Feneff v. Boston & Maine Railroad, 196 Mass. 575, 580, et seq. Bagley v. Wonderland Co. 205 Mass. 238, 245, 246. D’Almeida v. Boston & Maine Railroad, 209 Mass. 81, 87. Hunt v. New York, New Haven, & Hartford Railroad, 212 Mass. 102,107,108. Brown v. Thayer, 212 Mass. 392, 397. Dickey v. Willis, 215 Mass. 292, 293. The plaintiff was entitled to have the issue found in his favor and to hold the defendants, although the accident would not have happened without the negligence of McArthur Brothers, if it also appeared that it would not have happened but for the negligence of the defendants which has been stated and that each of these different acts of negligence was a proximate cause of the accident, in the sense that the accident was directly due to the combined effect of these two causes and not merely to the negligence of McArthur Brothers.

Exceptions sustained.