194 Mass. 407 | Mass. | 1907
In our opinion, upon the special findings made by the jury, the plaintiff would be entitled to retain his verdict if there was no error in the admission of evidence or in the instructions upon which those findings were made. But we are of opinion that there was such error.
There was, to say the least, evidence upon which the jury might have found that the plaintiff, in putting into his cellar the wire and appliances for a portable light, violated §§ 9, 10 and 11 of the ordinances of the city of Lowell, in that he failed to notify the inspector of wires of the intended extension before the work was begun and did. not obtain a permit for such extension, and did not comply, in making the extension, with the rules and regulations of the national board of five underwriters; and that this conduct of the plaintiff was the cause of the accident which happened. In view of the penalty imposed by § 14 of the ordinance, the presiding judge rightly ruled that the plaintiff could not recover if he had thus acted in violation of the ordinance and such violation had contributed to the accident. Brunelle v. Lowell Electric Light Corp. 188 Mass. 493. But as bearing upon the latter question he permitted the inspector of wires, against the exception of the defendant, to testify that in a case like this, where wires were already installed and there was simply an extension made, it was not his practice to require an application to be made and a written permit obtained before the current was turned on, but to make such requirement only where there was a new installation; that in the majority of cases where the work was exposed, he did not go to examine the premises, but relied on his notice; that if he thought there was any question about the contractor or the premises he would make it his business to get there; that he knew Hinckley, the contractor who did this work, and that he stood well in his business. He further testified at considerable length to the same effect. That this evidence was introduced to excuse the plaintiff for not having seasonably made application and secured a permit from the inspector is shown by the fact that the
The practice which the inspector testified that he had adopted was certainly contrary to the terms of the ordinance, and was unlawful. The jury should not have been allowed to speculate upon the question whether the inspector, if he had received proper notice from the plaintiff, would have neglected to perform his duty. This was wholly an immaterial question. Jones v. Holden, 182 Mass. 384. Pickering v. Weld, 159 Mass. 522. Abbott v. North Andover, 145 Mass. 484. Commonwealth v. Perry, 139 Mass. 198. Cutter v. Howe, 122 Mass. 541. The recognized principle that in dealing with ancient instruments and transactions, where doubtful words are used, where the purpose and intent are obscurely expressed, the acts and conduct of the parties, immediately following, are to be regarded as the best expositors of the meaning intended, (Cambridge v. Lexington, 17 Pick. 222, 230,) is inapplicable here. And see further Geyser-Marion Gold-Mining Co. v. Stark, 106 Fed. Rep. 558; Consolidated Coal & Mining Co. v. Floyd, 25 L. R. A. 848.
The testimony of the inspector of wires to his opinion that it was not the duty of any person other than himself to enforce in the city of Lowell the provisions of the ordinance which has been mentioned, ought not to have been received. It was for the court and not for the witness to construe the ordinance.
As the other questions raised upon the bill of exceptions are
Exceptions sustained.