275 Mass. 226 | Mass. | 1931
These are actions under G. L. c. 229, § 5, in the amended form appearing in St. 1925, c. 346, § 9, which makes liable in damages “a person who by his negligence or by his wilful, wanton or reckless act, or by the negligence or wilful, wanton or reckless act of his agents or servants while engaged in his business, causes the death of a person in the exercise of due care, who is not in his employment or service.” They are before us upon bills of exceptions of the plaintiffs and of the defendant after verdicts for the plaintiffs. It is conceded that no wilful, wanton or reckless conduct contributed to the injury; and that the defendant is not liable if the deceased persons were employees of the defendant or volunteers in assisting a servant of the defendant to move the conveyor which communicated the electric shock that killed them.
The uncontradicted evidence introduced by the plaintiffs
There was no evidence of express authority to Heald to ask assistance of the deceased teamsters, and none of any practice or custom for waiting teamsters, not employed by the defendant, to assist the defendant’s employees in the loading of their teams or in the handling of loading appliances. Heald at the time was the only one of the defendant’s employees on hand for loading.
The defendant excepts to certain rulings upon evidence, to the refusal to direct verdicts for the defendant, to certain refusals to give instructions requested, and to a portion of the charge. We find no error in the rulings upon evidence.
The father of Coulombe was riding with him upon his truck and was the only living witness to the accident. He was allowed to testify that Heald requested Coulombe and Thomas to help him move the conveyor. This evidence was competent to explain the conduct of the two drivers and to show what took place, even if Heald was without authority to extend the invitation. No request was made to confine its application. No good exception lies to the general admission of evidence which is competent, responsive and material in any aspect of the case, unless a request be made and refused to confine it to its technical bearing. Irwin v. Worcester Paper Box Co. 246 Mass. 453. Ferris v. Ray Taxi Service Co. 259 Mass. 401, 404.
The evidence of the expert Lawrence that the machine was a dangerous one to have in operation, his opinion and the reasons for it were not incompetent on the ground contended for by the defendant that he was passing upon the question for the jury. In matters where technical details, complicated machinery or forces not generally understood by the ordinary man are involved, jurors may be assisted in reaching a just opinion of their own by learning the opinion of persons trained in special knowledge or experience of the facts concerned. To assist them is the function of the expert witness. If he is asked to express an opinion on the credi
The defendant contends that as matter of law no liability could be established on the evidence. To persons who came upon its premises in consequence of an invitation to do business with it, it owed a duty to have the premises reasonably safe for the common purpose. Statkunas v. L. Promboim & Son, Inc. 274 Mass. 515, 519, and cases there cited. The deceased teamsters were in the coal yard in consequence of such an invitation. Nevertheless, no invitation to assist the coal yard men in loading or in handling loading machinery was extended to them by the general welcome to come thither to get loads of coal, or by any practice or custom known by them to be usual in the coal yard. Walker v. Winstanley, 155 Mass. 301. Butler v. Mechanics Iron Foundry Co. 259 Mass. 560. No ostensible authority existed in Heald to invite assistance. O’Leary v. Fash, 245 Mass. 123. There was no such emergency that authority could be implied from the circumstances. See Hollidge v. Duncan, 199 Mass. 121,123. In acting upon his request they ceased to stand as persons to whom a duty to maintain the premises in safe condition was owed by the defendant. They stood in the position, at best, of bare licensees, to whom no duty was due other than to refrain from wilful, wanton and reckless conduct. Bruso v. Eastern States Exposition, 269 Mass. 21, 24-25. Moffatt v. Kenny, 174 Mass. 311. It is agreed that no wilful, wanton or reckless conduct contributed to the accident. In the absence of breach of duty, there was no actionable negligence. Bergeron v. Forest, 233 Mass. 392. It follows that the defendant was entitled to the directed verdicts for which it moved, and
The other exceptions of the defendant need not be considered.
The plaintiffs’ bill of exceptions relates to rulings excluding evidence that Coulombe, when delivering his load of crushed stone, stated to the city workman engaged in spreading the stone that he would be back that morning with another load; and that the workman answered that unless Coulombe could get the stone on the job before half past eleven o’clock there was no use in bringing it because on Saturday there would be no one at work to spread it after that time. In view of the decision reached upon the defendant’s exceptions, we need not discuss these rulings at length. If admitted, the evidence would not have entitled the plaintiff to go to the jury. No prejudicial error resulted from its exclusion. The exceptions are overruled.
As the exceptions of the plaintiffs are overruled and the exception of the defendant to the refusal to direct verdicts in its favor is sustained, pursuant to G. L. c. 231, § 122, the order in each case will be
Judgment for defendant.