211 Mass. 575 | Mass. | 1912
The injury to the plaintiff’s eye resulted from the bursting of a bottle while he was working for the defendants upon a machine for bottling tonics. The only evidence in the case was the testimony of the plamtiff. In consequence of his imperfect command of the English language and the fact that some of his explanations were indicated to the jury by motions of the hands and appear in the exceptions only by the word “indicating,” which conveys no meaning to us, the meagre record fails to dis
The plaintiff was sixteen years of age, had been in the employ of the defendants two or three weeks, and was taught to operate the three bottling machines in the shop. Twice before the day of the accident he worked on the machine in question. The last time it worked all right; and there was no evidence that it was used by any one else in the meantime. During the forenoon of the day of the accident he worked on one of the other machines, and after noon was filling the first bottle on this one when the injury occurred. The entire testimony as to the happening of the injury is as follows: “Q. Will you please tell us what happened while you were filling? A. As soon as I put in the bottle in the machine I began to let the water go, and she was full, and as soon as I began to close it up she bursts right in my eye. . . . —Q. Well do you know how it happened that the bottle broke that afternoon? A. Well I was filling the bottle and it broke, that is all I know.”
The only other testimony that bears upon the issue of negligence is the following conversation between the plaintiff and one-of the defendants after the accident: “I have told him how it was so. ‘Well,’ he says, ‘That is a little— it only costs us thirty-five cents a spring to that door — it is so close—
We have here the mere occurrence of an accident. To infer from that alone that it was caused by the negligence of the defendants would be to assume the very issue which the plaintiff is obliged to prove. This is not a case of res ipsa loquitur, where we can say that in the ordinary course of things such an accident could not happen unless from careless construction, inspection or use attributable to the employer. The plaintiff’s claim is not based on the mere breaking of the bottle; he knew from experience that this was likely to occur, and so far as the evidence shows it
As the plaintiff has failed to show that the injury was due to negligence on the part of the 'defendants, it becomes umiecessary for us to consider the issues of his due care and assumption of risk.
The trial judge
So ordered.
Pratt, J.