Summersell v. Fish

117 Mass. 312, 1875 Mass. LEXIS 224

Opinion

Wells, J.

The plaintiff shows no good ground of exception. In opening his case, it was stated that he “ made no question of the competency ” of Brown as foreman. Hot having withdrawn this statement, nor given notice, during the trial, of any change of purpose, and having offered no evidence professedly to show incompetency, it would have been unjust, and a surprise upon the defendants, to have allowed his counsel, in his closing argument to the jury, when the defendants had no opportunity for reply, to ask the jury to infer that Brown was an incompetent person for his work, from the manner in which he directed the work at the time of the accident.

Of course, if Brown was a competent person for his employment as foreman, there was no fault or negligence on the part of the defendants in employing him.

There remained then for the jury only the question whether the defendants were negligent in regard to the appliances furnished, or which they ought to have furnished for the performance of the work. The plaintiff waived all claim that Brown was the agent of the defendants in arranging the appliances ; conceding that in this particular he stood in the relation of fellow workman with the plaintiff. The instructions as to the duty of the defendants in regard to those appliances were such as gave rise to no exception. We are to presume therefore that they were not only correct, but sufficient. The remark of the presiding justice, upon the return of the jury into court,' in answer to an inquiry “ as to precisely what matters they were to decide,” that it was whether the derrick and its appliances were “ such that it could be safely hoisted from one floor to another,” accompanied with a repetition of the instructions previously given upon that subject, could not have misled the jury as to the real question, although the remark itself, standing alone, may have been too restricted a statement of the question. Exceptions overruled.