Scullane v. Kellogg

48 N.E. 622, 169 Mass. 544, 1897 Mass. LEXIS 116

• Court: Massachusetts Supreme Judicial Court
• Decided: November 24, 1897
• Status: Published

Opinion

Allen, J.

The first, third, and fourth requests for instructions were rightly refused. The jury might find from the plaintiff’s testimony that the defendants’ superintendent had virtually promised to look out for him while he was picking up the paper in the elevator well; and if such promise had been given, the plaintiff was entitled to go to the jury upon the questions of negligence on the part of the superintendent, of due care on his own part, and of his assumption of the risk. Davis v. New York, New Haven, & Hartford Railroad, 159 Mass. 532, 535.

A more doubtful question arises upon the second request. This request does not touch the question of the plaintiff’s due care, or of his assumption of the risk, but it presents the question whether, in the absence of any promise by the superintendent to look out for the plaintiff, there was any sufficient evidence of his negligence. Upon consideration, we think there was sufficient evidence to entitle the plaintiff to go to the jury on this question, even omitting the testimony of the conversation. That is to say, there was some evidence tending to show that the plaintiff had been responsible for the upsetting of the paper, that the superintendent came to the place where this had happened and saw the plaintiff and others at work picking up paper, that his purpose was to have the entire matter remedied before he went away, that he knew that some of the paper had been spilled down the elevator well and that the plaintiff was the person who had spilled it, that he knew that somebody would have to go down stairs and pick up the paper in the well, that he saw the plaintiff go off, that in point of fact the plaintiff went down stairs and went to work picking up the paper in the well, and that after some minutes, and before the superintendent went down, the elevator was lowered and came down upon the plaintiff while he was at work there. The jury might infer from this evidence that the superintendent knew or supposed that the plaintiff had gone down to do that which he actually did; and they might think that he ought to have taken some precautions to prevent the elevator from being let down upon the plaintiff. On the whole, the court might properly refuse to give the second instruction.

The fifth request was also properly refused. Although there was no distinct proof of the amount of the expenses of sickness or medical attendance, yet, in view of the evidence as to the physician’s services, the jury might allow a reasonable sum. In a proper case, even unascertained future expenses may be allowed for. Turner v. Boston & Maine Railroad, 158 Mass. 261, 267.

Exceptions overruled.