Littlehale v. Osgood

Lathrop, J. These cases appear to have been tried on the count in each declaration which alleges a false representation made by the defendants to the plaintiff in the first case to the effect that the house was in good sanitary condition. Whether such a representation was made was in controversy. The bill of exceptions on this point is as follows : “ The plaintiffs offered evidence tending to show a representation by the defendants of the good sanitary condition of the premises, made at the time when they entered into occupation of the same, which representation was denied by the defendants.” No question of law arises in the case except as to the correctness of two portions of the charge to the jury; and there is nothing to show that the extracts given contain all that was said on the subjects to which they relate. There was evidence that the plaintiff in the second case was taken ill with diphtheria, and that, on investigation, an old well was discovered on the premises partly filled with filth and fecal matter, and there was also evidence tending to show that the condition of the well was an adequate cause of the diphtheria. There was also evidence that the plaintiff in the second case, up to the time she was taken ill, attended school in another part of the city, using the street cars when she did not walk. The first ruling complained of was, in effect, that the burden of proof was on the plaintiffs to show that the well was the cause of the diphtheria; that the jury could not act on conjecture or speculation, but the fact must be provedand that it was not [343] enough to show that it might be the cause. As we have already said, it does not appear that this was all that was said on the subject. Nor does it appear that the plaintiffs requested further instructions, which were refused. We see no error in the instructions given. While a jury may draw inferences from facts proved, because in many cases the main fact in issue can be proved in no other way, yet it cannot act on mere conjecture or speculation. Corcoran v. Boston & Albany Railroad, 133 Mass. 507. Tyndale v. Old Colony Railroad, 156 Mass. 503. Chandler v. New York, New Haven, & Hartford Railroad, 159 Mass. 589. Felt v. Boston & Maine Railroad, ante, 311. The remaining exception is to a portion of the judge’s charge, which merely states the testimony on the question whether there was a new hiring after the plaintiff' in the first case took possession of the premises. What the judge ruled that the effect of this evidence would be, which was not contradictory, does not appear. At the argument in this court the plaintiffs contended that, as the premises were let furnished, there was an implied warranty that they were in good sanitary condition. See Ingalls v. Hobbs, 156 Mass. 348. "But no question of this sort was raised at the trial, so far as the bill of exceptions shows, and we have no occasion to consider whether the doctrine of that case would apply when a house is rented for a year. Exceptions overruled.