| Mass. | Nov 30, 1891
1. Upon the uncontradicted facts, it is quite clear that Wedger and Tully were acting for the defendant in firing the fireworks, and the instruction that he was responsible for their negligence was correct.
2. The defendant now contends that the declaration alleges injury to the plaintiff from a bomb, while the evidence is consistent with the supposition that she was injured by a rocket; and that therefore the declaration is not supported. As to this ground of objection, it would be enough to say that it does not appear to have been taken at the trial; but if it had been, the evidence was sufficient to be submitted to the jury.
3. There was sufficient evidence for the jury of the negligence of the defendant’s agents. The evidence tended to show that the mortars were discharged in too small an enclosure for perpendicular firing to be safe; that insufficient time was taken for preparation; that the firing was done in somewhat of a hurry; that due care in firing bombs requires that the mortars should be so aimed that the bombs will not fall upon the people ; and that the bomb or shell which hit the plaintiff fell at a place far from where it was intended to fall, or safe for it to fall. The defendant now contends that there was no evidence of the negligent firing off of a particular mortar from which the plaintiff received her injury. There was, however, nothing to show that anybody else was discharging mortars near by, and the jury might well find that she was hurt by a bomb or fragment of a shell carelessly fired from a mortar by the defendant’s agents, and this was enough, without identifying the particular mortar, or the particular discharge, or tracing the bomb in its flight..
4. The evidence of ordinary care on the part of the plaintiff was sufficient. The evidence tended to show that she stood in the midst of the crowd that had gathered to see the display, and, apparently, in the place where they were expected to stand.
Exceptions overruled.