Henahan v. Lyons

201 Mass. 269 | Mass. | 1909

Hammond, J.

1. So far as respects the count at common law, the plaintiff failed to show negligence of the defendant. He was not personally present, and there is no evidence that the work was improperly done in any respect, or that suitable means of prosecuting it were not at all times provided, or that proper workmen were not employed. Nor is the doctrine of res ipso loquitur applicable. The workmen were engaged not in putting up the wall, but in tearing it down; and under such circumstances the fact that finally the wall came down is not of itself evidence of negligence.

2. So far as respects the second count, alleging negligence of one whose sole or principal duty was that of superintendence, it is sufficient to say that even if Scanlan is shown to have been in a certain sense a foreman there is not the slightest evidence that superintendence was his sole or principal duty. On the contrary the evidence, so far as it has any bearing, seems to point the other way.

Exceptions overruled.