240 Mass. 567 | Mass. | 1922
The insurer’s appeal from the denial of its motion to recommit the case to the Industrial Accident Board on the ground of newly discovered evidence not having been referred to in the brief nor argued at the bar must be treated as waived.
It was uncontroverted that the employee was hired as a “night watchman and he did the sweeping as well.” And that in the performance of his regular duties shovelling snow off the sidewalk in front of the store, he received a bullet wound in the abdomen from which in the opinion of the assistant medical examiner death by internal hemorrhage ensued the same day. The use by him of the word “accidentally” which the insurer asked “be stricken from the record,” although the request should have been granted, did not in our opinion affect the substantial rights of the insurer. When the entire record is reviewed it furnishes no ground for reversal of the decree. Pigeon’s Case, 216 Mass. 51, 55.
If the injury however could be found to have been received in the course of his employment, the insurer contends there was no evidence which warranted a finding, that it arose out of his employment. The only witness of what actually occurred said in substance, that there had been quite a fall of snow and while on his way to his place of business on the same side of the street as the employer’s store he saw a man about twenty or thirty feet away shovelling snow off the sidewalk of which about three or four square yards had been cleaned. The man was stooping over shovelling when the witness “saw him straighten up and reach back and take something out of his right hip pocket.” A minute or two after he had straightened up and removed it the witness heard the explosion. The man looked up and down the street, and “in his side pocket in a hurried fashion,” shovelled a little and then fell to the ground. The witness also looked “ to see if anybody
The finding that the employee was not feloniously or accident
• But even if these findings were warranted the insurer urges that, the evidence is so meagre, inconclusive and conjectural as to preclude the further finding of the single member that he accidentally shot himself, which the Industrial Accident Board adopted on. review, and awarded compensation to the claimant the employee’s, widow. It was said in Prince v. Lowell Electric Light Corp. 201 Mass. 276, 281, an action for death by wrongful act of the defendant,, and where there was no eyewitness at the time of death, that it. was not necessary that any positive act of the intestate showing due care should be proved. “ It may be inferred from mere absence, of fault, when sufficient circumstances are shown fairly to exclude, the idea of negligence on his part.” A jury “must often reason aecqrding to probabilities, drawing an inference that the main, fact in issue existed, from collateral facts not directly proving,, but strongly tending to prove its existence.” Wright v. Tatham, 5 Cl. & F. 670, 764. It could be inferentially found on the circumstances considered in the light of the direct evidence, that the revolver in his hip pocket interfered with, and hampered the performance of his work, because freedom of movement was retarded.. And that while transferring the revolver from his hip pocket to the inside pocket of his coat it was accidentally discharged. The motions of the employee described in the evidence quoted are not inconsistent with this view. Uzzio’s Case, 228 Mass. 331. Sanderson’s Case, 224 Mass. 558, is plainly distinguishable.
We have not overlooked the evidence of the city marshal who qualified as an expert “in fire-arms,” that the revolver if held in the pocket and removed from it could not be discharged unless it was cocked by somebody and then fired. But the credibility of
Ordered accordingly.