Carter v. Towne

103 Mass. 507 | Mass. | 1870

Guay, J.

The testimony introduced for the plaintiff at the trial discloses quite a different case from that alleged in the declaration, which was held sufficient when the case was before us on the demurrer; and shows that the gunpowder sold by the defendants to the plaintiff had been in the legal custody and control of the plaintiff’s parents, or, in their absence, of his aunt, for more than a week before the use of the gunpowder by which he was injured. Under these circumstances, that injury was not the direct or proximate, the natural or probable, consequence of the defendants’ act; and the jury should have been instructed, in accordance with the defendants’ request, that there was no legal and sufficient evidence to authorize them to return a verdict for the plaintiff. As this strikes at the root of the action, it is unnecessary to consider the other questions argued by counsel. Exceptions sustained.