Lamanna v. American Express Co.

230 Mass. 564

Opinion

Loring, J.

The count on which the plaintiff went to trial was a count alleging that he was shot by one O’Brien through the carelessness and negligence of O’Brien in handling a revolver in the course of his employment as a servant of the defendant. The evidence went no further than to warrant the jury in finding that a third person asked O’Brien to see whether a cartridge which he hád picked ,up would fit the revolver O’Brien was carrying in a holster through this belt in the course of his employment as the defendant’s servant; that thereupon O’Brien drew the revolver from the holster and that as he did so the revolver went off and the plaintiff was shot in the leg. On this evidence the jury were not warranted in finding that in drawing the revolver from the holster O’Brien was acting in the course of his employment as a servant of the defendant.

In accordance with the terms of the report the entry must be

Judgment for the defendant.