McLellan v. Fuller, 226 Mass. 374

McLellan v. Fuller

226 Mass. 374 | Mass. | 1917

Braley, J.

It was said in Gilbert v. Williams, 8 Mass. 51, 57, “There is no doubt that for any misfeasance or unreasonable neglect of an attorney, whereby his client suffers a loss, an action may be supported and damages recovered to the amount of that loss.” The plaintiff accordingly had the burden of establishing by competent evidence the fact of negligence or want of reason*378able skill on the part of the defendant, and the actual loss or damages resulting therefrom. Whitney v. Abbott, 191 Mass. 59, 64.

The jury could find that the defendant was seasonably retained to effect a settlement or to bring an action for personal injuries against the plaintiff’s employer under R. L. c. 106, § 71, cl. 2, but neglected to give the notice required by § 75, and that because of this omission, which they also could say was due to the negligence of counsel, a verdict for the defendant was ordered at the trial of the case. But if independently of this fatal defect the plaintiff had no case on the merits, he has not suffered any loss except as to the expenses he may have sustained in preparing for the trial; a question which has become merely incidental. The question whether he had a case entitling him to go to the jury upon proof of compliance with the precedent condition imposed by the statute and whether he probably would have recovered a verdict was * properly stated by the judge in his instructions. It was therefore correctly ruled that whether the plaintiff could have maintained the action was the question to be determined, and much evidence was introduced on this issue.

The due care of the plaintiff, a minor at the date of the accident, and that one Ogley, to whom we shall hereafter refer as the superintendent, had been charged with the duties of superintendence or that if while he was removing one gear and putting another gear on the back end of the spinning frame, the "frame” started the plaintiff would be exposed to the danger of severe injuries, in so far as not conceded, were for the jury.

The plaintiff testified, that when injured he was shifting the gear in compliance with an order of the superintendent who gave him the gear and ordered him to “put it on the frame,” and the jury could find on his evidence that he had received instructions from the superintendent "that the frame would not be started until the plaintiff reported either to Ogley or to the foreman of that room.” The jury could further find, on conflicting evidence which it is unnecessary to recapitulate, that the frame being at rest, and while the plaintiff was engaged in making the change, the superintendent with full knowledge of the circumstances and without any warning gave an order to start the machine, which having been obeyed, the plaintiff suffered the injuries of which he complained.

*379It being plain that the answers of the jury to the questions were warranted by the evidence, the first, second, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth and thirteenth requests were denied rightly. McLellan v. Fuller, 220 Mass. 494, 499, 500.

The evidence moreover “that before starting the frame it is the custom to holler so as to warn everybody about the frame to get away so that when it shall start up no one will get caught in it,” and that such an outcry was made, is a custom not shown to have been called to the attention of the plaintiff or to have been within his knowledge. The clamor of his fellow employees in the spinning room, even if devised for their own safety, could neither modify nor supplant the authority vested in the representative of the employer. It being the duty of the plaintiff to obey the orders of his superior, he had the right when making the change to understand that the superintendent would keep his word and to act upon his instructions, that the frame would not be put in motion until he reported to him or to the overseer that the work had been performed. Jellow v. Fore River Ship Building Co. 201 Mass. 464, 468.

The remaining requests in so far as material were amply covered by the charge, except that in giving the fifteenth request, that “the measure of damages is that which might have been recovered in the former action” against the company, the judge further instructed the jury that they could compute interest on the amount from a date named by agreement of counsel to the date of the verdict. It is contended by the defendant that under Cochran v. Boston, 211 Mass. 171, this request should not have been modified and that the instruction was erroneous. But the present action is not for personal injuries as in Cochran v. Boston, but for the loss of money damages which the plaintiff would have obtained and had the use of if the defendant had not been negligent. The addition of interest only made the plaintiff whole for the delay and was properly allowed. Peabody v. New York, New Haven, & Hartford Railroad, 187 Mass. 489, 493, and cases cited.

The exceptions taken to what the judge said in reply to the question of a juror when the charge was substantially closed and to the question put by his counsel to the plaintiff concerning the introduction of evidence at the trial against the company, “Well, this, I take it, is so, that you answered all questions that Mr. Fuller *380put to you?” to which the witness replied “Yes,” are without merit. The instructions which followed the colloquy, when read as a whole, are in full accord with the statements in the charge as to the grounds on which the negligence of the superintendent rested, and no enlargement of the employer’s liability appears. Conners Brothers Co. v. Sullivan, 220 Mass. 600, 607. If the question to the witness was leading, and for this reason might have been excluded, its admission was within the discretion of the judge. Partridge v. Middlesex & Boston Street Railway, 221 Mass. 273,275.

We have fully considered all the exceptions and finding no error of law they must be overruled.

So ordered.