Kendall v. City of Boston

118 Mass. 234, 1875 Mass. LEXIS 345

• Court: Massachusetts Supreme Judicial Court
• Decided: September 3, 1875
• Status: Published

Opinion

Devens, J.

No evidence was offered as to the manner in which the bust had been attached to or placed upon the balcony, or as to whether it had been properly secured; but the plaintiff relied simply upon the fact that it fell, as evidence of negligence on the part of those whom she claimed to be responsible for the decoration of the hall.

Where a stage was overturned by the coming off of a wheel upon a smooth and level road, the evidence was held to be competent to show that the coach could not have been properly prepared for the road. Ware v. Gray, 11 Pick. 106. So where a railway train ran from the track and was overturned, it was fairly presumable, as the machinery and railway track were exclusively in the management of the railway company, that the accident arose from its want of care, no explanation of the cause being offered. Carpue v. London Brighton Railway, 5 Q. B. 747. Feital v. Middlesex Railroad, 109 Mass. 398, 405.

In Kearney v London, Brighton South Coast Railway, L. R. 6 Q. B. 759 where the plaintiff was injured by the fall of a brick from the pier of a railway bridge of the defendant, there being no assignable cause except from the vibration produced by a train which had just before passed, and it appeared on examination that other bricks had fallen out, there was held to be evidence from which the jury might infer negligence. As in the case of the coach, above cited, the circumstances tended to show that it could not have been properly prepared for the road, so in that of the bridge they indicated that it was improperly constructed or negligently maintained.

In all these cases, it is to be observed that the defendant has been proved to have had the exclusive control and management of those objects or agencies from some defect in which the accident must have taken place.

In the present case, it is not shown whether the balcony was or was not occupied by the audience, whether those composing the audience or others did or did not rightfully have access to the place where the bust was put, and thus whether the fall may not have been occasioned by the wrongful or negligent act of some third person. It is not sufficient for the plaintiff to show that the injury may have been occasioned by the negligence of those whom he seeks to charge with it. If there were other causes which also might have produced it, he is in some way to show that these did not operate. Without some evidence as to the manner in which the bust was attached or secured, its fall alone did not furnish sufficient evidence of negligence.

In the view we have taken of the plaintiff’s case, it is unnecessary to discuss what are the respective responsibilities of the defendants. Judgments on the verdicts.