208 Mass. 199 | Mass. | 1911
This is an action of tort to recover for the death of the plaintiff’s intestate alleged to have been caused by the defendant’s negligence at Canton on July 16,1906. At the close of the plaintiff’s evidence .the trial judge directed a verdict for the defendant and reported the case with the stipulation, agreed to by the parties, that if the ruling was wrong judgment should be entered for the plaintiff for $2,500, otherwise, for the defendant. Certain evidence was introduced at the trial subject to the defendant’s exceptions, and is contained in the report. In regard to that the report has the following statement by the presiding judge: “Believing that the case should be finally decided, I have set out the said exceptions and reserve for the full court the question as to whether or not they should be considered.” We construe this as meaning that if the ruling directing a verdict for the defendant was wrong as the case stands but would not be if that evidence was excluded, then the question of its admissibility is to be considered; otherwise not. We see no objection to this form of report, but we do not find it necessary to consider the question of the admissibility of the evidence since we are of opinion that as the case stands the ruling directing a verdict for the defendant was right.
We assume in favor of the plaintiff that there was evidence of negligence on the part of the defendant in suffering the insulation upon the wire to become thin and worn. One witness testified that it was worn off so that the wire was exposed at a place where the cover of the box if swung up would strike it. But we are constrained to hold that there is no such evidence of due care on the part of the plaintiff’s intestate as to warrant a verdict against the defendant. There was evidence tending to show that there was a burn caused by electricity between the second and third fingers of the left hand of the intestate, extending to the bone, and that the death of the intestate was caused by accidental electrocution. There was also evidence
So ordered.