Negligence, In maintaining trench machine, Res ipsa loquitur. Practice, Civil, Exceptions, Judge's charge. Evidence.
The falling on the head of a man, who is working in a sewer in process of construction, of an iron buffer suspended on the rod of a Carson trench machine and used to control the passing of the excavating buckets can be in itself evidence of negligence.
In an action by a workman against his employer for personal injuries from an iron buffer of a Carson trench machine, which was suspended over a sewer in process of construction, falling on his head while he was working in the trench, if the circumstances are such that the falling of the buffer is in itself evidence of negligence, the fact that the plaintiff has introduced evidence in attempting to show why it fell does not preclude him from relying on the doctrine of res ipsa loquitur, which entitles him to go to the jury on showing that the accident happened.
On an exception to a particular portion of the charge of r a presiding judge, this court will consider all of the charge which appears by the record, to determine whether the instructions to the jury taken as a whole were correct on the point to which the exception relates.
In an action by a workman against his employer for personal injuries from an iron buffer of a Carson trench machine, which was suspended over a sewer in process of construction, falling on his head while he was working in the trench, the plaintiff may show the condition immediately after the accident of the bolt from which the buffer was suspended.
LORING, J.
In our opinion the falling of the buffer was under the circumstances in itself evidence of negligence. This disposes of the fifth request and also of the request that the jury be directed to find for the defendant. Although the plaintiff in his evidence went beyond showing that the buffer fell, he did not go far enough to deprive him of the case made by the falling of the buffer. The case in this respect comes within Cassady v. Old Colony Street Railway, 184 Mass. 156.
Taking the instruction as a whole, it is not subject to the complaint now made, that the jury were not properly instructed as to the burden of proving negligence.
Evidence of the condition of the bolt immediately after the accident was admissible.
Exceptions overruled.