Perlman v. Burrows

| Mass. | Jan 28, 1930

Field, J.

These two actions of tort were heard together by a judge of the Superior Court sitting without a jury. Samuel Perlman, a minor, sued by his next friend to recover damages for injury to his eyes, alleged to have been caused by the negligence of the defendant. Morris Perlman, father of the minor, sued to. recover for. medical attendance furnished by him to his son and loss of the services of his son, by reason of the injury in question. The trial judge made findings of fact and in each case found for the plaintiff. The defendant excepted to the denial of certain of his requests for rulings. The only question raised by these exceptions which is argued by the defendant is whether the evidence warranted a finding that he was negligent.

The judge made, among others, the following subsidiary findings of fact which were warranted by the evidence. The defendant was driving an automobile on Blue Hill Avenue, Boston; “the right rear tire went flat and he stopped on the right side of the roadway to change the tire , To change a tire it was necessary to take the wheel off and . . . remove the shoe from the rim. The time was between eight and nine p.m. and . . . defendant was working under an electric light, the pole supporting the light being in a dirt space between the curb and a nine-foot concrete sidewalk. The.curb is eight inches wide; from the edge of the curb to the pole is sixteen inches; the pole is twelve inches through, and from the pole to the concrete sidewalk is twelve inches .... The shoe was stuck on the rim, and to loosen it, the defendant was banging on the rim with a hammer, the wheel leaning against the electric light pole .... Metal particles flew off the rim as the defendant struck it with the hammer and the particles flew off to such an extent that the defendant felt them hit his arm. ‘They were coming off on me and up to my head.’ He had been banging on the rim for two minutes when plaintiff, a boy, then about fifteen years old, came along the concrete sidewalk, walking about two feet in from the outside, and when two or three feet from the defendant a metal splinter flew from the rim as the defendant struck it with the hammer and lodged in plaintiff’s right eye .... [The defendant] had a two-minute warning that metal particles were flying as he struck and he was aware of his proximity to the sidewalk.”

The judge was justified in concluding that the defendant in striking the rim with the hammer, when in proximity to the sidewalk, and continuing to do so for two minutes knowing that particles were flying off as high as his head, failed to exercise reasonable care under the circumstances. Though the result of the defendant’s act in its precise form — the flight of a particle of metal from the rim to the eye of the minor plaintiff as he was walking on the sidewalk — may have been unforeseen or even unprecedented, the judge could have found that in its general nature it was a probable consequence against which the defendant should have taken precautions, and that it was not merely a mischance in the course of prudent conduct of the defendant. Such findings would establish the defendant’s negligence. Hill v. Winsor, 118 Mass. 251" court="Mass." date_filed="1875-09-04" href="https://app.midpage.ai/document/hill-v-winsor-6418178?utm_source=webapp" opinion_id="6418178">118 Mass. 251, 259. Dulligan v. Barber Asphalt Paving Co. 201 Mass. 227" court="Mass." date_filed="1909-02-26" href="https://app.midpage.ai/document/dulligan-v-barber-asphalt-paving-co-6430566?utm_source=webapp" opinion_id="6430566">201 Mass. 227, 231. Guinan v. Famous Players-Lasky Corp. 267 Mass. 501" court="Mass." date_filed="1929-06-04" href="https://app.midpage.ai/document/guinan-v-famous-players-lasky-corp-6439040?utm_source=webapp" opinion_id="6439040">267 Mass. 501, 517. Compare Brown v. Kendall, 6 Cush. 292, 297; Nichols v. Boston Elevated Railway, 231 Mass. 299" court="Mass." date_filed="1918-11-26" href="https://app.midpage.ai/document/nichols-v-boston-elevated-railway-co-6434549?utm_source=webapp" opinion_id="6434549">231 Mass. 299, 300.

Exceptions overruled.