O'Neal v. O'Connell

45 N.E. 758, 167 Mass. 388, 1897 Mass. LEXIS 348

• Court: Massachusetts Supreme Judicial Court
• Decided: January 9, 1897
• Status: Published

Opinion

Lathrop, J.

This is not a case where the only evidence before the jury was the fact that an accident had taken place, and we have no occasion to consider to what extent the rule of res ipso loquitur is applicable to the case of an injury to a servant while engaged in the digging of a trench. This court has gone no further in a case of this kind than to say that, where the accident is such as is commonly preventable by the exercise of ordinary care, “ the accident itself, in connection with the circumstances shown in regard to the depth of the trench and the slope of its sides, and the distance of the braces from each other, furnishes evidence from which the jury might have found negligence on the part of the foreman in charge of the work.” Hennessy v. Boston, 161 Mass. 502.

In the case at bar, all the facts were before the jury. At the close of the charge, the request was made that the fact that earth fell out was some evidence of negligence. We are of opinion that the judge was not bound to single out one fact and give that a prominence which might have misled the jury, and that he was right in submitting the case to the jury on all the evidence. Carmody v. Boston Gas Light Co. 162 Mass. 539.

Exceptions overruled.