Joy v. Winnisimmet Co.

114 Mass. 63 | Mass. | 1873

Wells, J.

There was an absolute failure of proof that the defendant was in fault. The evidence tended to show that the boat had struck the wharf and was secured upon one side, but had not swung to so as to be secured at the other side. The drop had not been lowered to the passage-way for carriages, by which the plaintiff attempted to leave the boat. The passageways from the boat were secured by chains. To make the defendant liable for his injury, the plaintiff relies upon the fact that the chain across the carriage-way was down when he attempted to pass it. But the burden was on him to show that it was down by some fault of the defendant. He offered no proof beyond the fact itself, it appearing that some fifty persons had pressed forward and passed the space between the boat and the drop, in advance of him. On the other hand, the person whose duty it was to fasten the boat and then remove these chains, testified, without contradiction, that at the time of the accident he had not finished securing the boat, had not let down the chain across the carriage-way, and did not know whether it was down or not. The obvious inference from all the circumstances is, that the chain was let down improperly by some of the crowd of persons who were in haste to leave the boat before it could be safely sécured to the landing. The plaintiff owes his misfortune to the conduct of these persons, and not to any fault or negligence, which he has shown, on the part of those in charge of the boat.

It becomes unnecessary, therefore, to consider the question of the plaintiff’s want of care, as presented by the several rulings prayed for at the trial.

Exceptions sustained.