167 Mass. 254 | Mass. | 1897
At the trial, the plaintiff’s counsel read the pleadings, and proceeded to open the case to the jury; whereupon,on motion of the defendant, the court directed him to specify the negligence on ■ the part of the defendant on which he relied. The plaintiff thereupon said that he was unable to state with any more precision than he had done in his pleadings the cause of the accident complained of, but in his bill of exceptions as presented by him to the court it is set forth that he “ submitted the following statement of fact as his offer of proof of the cause of his injury: the following are the facts which the plaintiff offered to prove, and upon which he relies to maintain his action.” The commissioner finds that, in order to conform to the exact truth, the words in quotation marks should be stricken out, and the following inserted in place thereof, viz.: “ offered to prove the following facts.” The defendant now contends that the bill of exceptions as presented to the court did not exhibit correctly the manner in which the plaintiff presented his case to the court, in that he did not state that he relied upon these facts to prove the injury. We are of opinion that this variation is not of sufficient importance to defeat the plaintiff’s
The commissioner also finds that the statement of facts offered to be proved, as set forth in the bill of exceptions, varied somewhat in phraseology and order from the statement of facts actually made at the trial. It is not, however, contended on the part of the defendant that this variation is important, and we think the statement as made in the bill of exceptions conformed in substance to the statement actually made at the trial; and that the plaintiff’s bill of exceptions as presented should not be defeated on this ground, but might and should have been amended, if the changes were deemed to be of enough importance to require attention. Morse v. Woodworth, 155 Mass. 233.
We proceed, therefore, to-consider the case on its merits, and for this purpose we take the bill of exceptions in the commissioner’s draft and form, which he finds to conform exactly to the truth.
The declaration was in two counts; the first being at common law, and the second under the employers’ liability act, St. 1887, c. 270. The first count alleged that the plaintiff was working in the employ of the defendant, and was riding upon a car which had been switched off the main track on to a track known as the D’Estey track, and while so riding and working, “ by reason of the negligence of the defendant, its agents, officers, or servants, who were not the fellow servants of the plaintiff, said car on which he was working at the time jumped the track, to wit, the D’Estey track, near or at a frog,” etc. The second count adds an averment “ that said car jumped the track as aforesaid by reason of a defect in the ways, works, and machinery of the defendant, which arose from or had not been discovered or remedied, owing to the negligence or carelessness of some person in the employ of the defendant corporation, and intrusted by it with the duty of seeing that the ways, works, and machinery were in a proper condition.” The plaintiff was directed to specify the negligence
From this we think it was sufficiently plain that the plaintiff relied on the ground that the railroad was defective at that place. The court required him to specify what negligence of the defendant he relied on. He answered, in substance, a defective road, by reason of which the cars jumped the track.
There was then a colloquy between the court and the plaintiff’s counsel, in which the court said, “ It is an entirely different statement from any that has been heretofore made”; and again, “ You said repeatedly you did not know what caused the accident.” To this the plaintiff’s counsel replied, “ I say so now, your honor; I don’t know what caused the accident; and I said it was not within human possibility to determine, on the part of the plaintiff, what caused the accident; but the accident did happen, and I have merely stated the evironment.”
We do not think this statement ought to be construed as a withdrawal of the plaintiff’s contention that the accident happened in consequence of a defect in the road.
We need not consider at this time the question whether negligence on the part of the defendant could be inferred merely from the happening of the accident, without more. The plaintiff did not rely solely upon the accident, but offered to prove other
Taking the offer of proof of these other facts in connection with the happening of the accident, in the opinion of a majority of the court it was enough to entitle the plaintiff to put in his evidence. Exceptions sustained.