203 Mass. 572 | Mass. | 1909
It may be assumed the jury could have found that the defendant’s servants, who were charged with the duty of making the changes, either knew or should have known of
But if the tenth request accordingly was properly refused, and the exceptions to the refusal to give the nineteenth request, not having been argued, must be treated as waived, the first and fourth requests should have been given.
By the provisions of the statute, before any recovery could be had, the burden of proof was on the plaintiff to introduce some affirmative evidence that her intestate exercised due care. If no positive testimony could be procured, proof of circumstances which excluded any act of contributory negligence would have been sufficient. Prince v. Lowell Electric Light Corp. 201 Mass. 276, 281, and cases cited. But if we turn to the testimony covering the period elapsing after the time she left the house of a friend shortly before midnight, and the next morning when between eight and nine o’clock she was found in her bedroom lying on the bed partially dressed, and although living and partially conscious, yet speechless from poisoning by illuminating gas, from the effects of which she steadily sank and died without recovering further consciousness, the most careful scrutiny reveals nothing as to her movements and conduct. If from the various circumstances of her life as they are disclosed, there may have been no motive for suicide, and the suggestion that she died by her own hand could have been negatived by the jury, all else rests upon pure conjecture. The plaintiff very urgently contends, that whenever the decedent may have sought repose, she must have left the gas burning, as the electric lighting arrangement with which the burner was equipped did not appear to have been defective, and
The action, therefore, cannot be maintained.
Exceptions sustained.