Graham v. Badger

Holmes, J. This is an action of tort to recover for personal injuries caused .by the fall of an iron block from a derrick upon the plaintiff, who was working in the defendants’ employ. The fall was due to the breaking of a rope at a point where it had been spliced. The weight attached to the rope was not sufficient to break or to endanger the apparatus if in proper condition. The main question is whether the judge before whom the case was tried was right in refusing to rule that the mere breaking of the rope was not prima facie evidence of negligence on the part of the defendants, and in instructing the jury that, if they found that the rope was defective while in the defendants’ care, that fact was evidence which, unexplained, would warrant them in finding that the defendants were negligent. We are of opinion that the instruction was correct. Res ip>sa loquitur, — which is merely a short way of saying that, so far as the court can see, the jury from their experience as men of the world may be warranted in thinking that an accident of this particular kind commonly does not happen except in consequence of negligence, and that therefore there is a presumption of fact, in the absence of explanation or other evidence which the jury believe, that it happened in consequence of negligence in this case. Presumptions of fact, or those general propositions of experience which form the major premises of particular conclusions of this sort, usually are for the jury. The court ordinarily confines itself to considering whether it can say that there is no such presumption, or, in other words, that such accidents commonly are not due to negligence. See Doyle v. Boston & Albany Railroad, 145 Mass. 386, 387, 388; Howser v. Cumberland & Pennsylvania Railroad, 80 Md. 146. It may be true that a rope properly spliced is stronger at the splice than elsewhere. But the jury might infer from the breaking that this rope had not been spliced properly. One witness who examined it testified that, so far as he could see or understand, the splice drew apart. At all events the rope broke at the [48] place where it had broken before and had been spliced, and it was for the jury to say what they would infer from that fact. Of course they were not bound to believe the testimony for the defence if it seemed to them incredible. We cannot say that they were wrong in rejecting the explanation that the rope probably kinked and caught in a wheel. Neither can we assume that the defect, if there was one, was hidden. If the jury were of opinion that defects in ropes great enough to make them break under a strain slight in proportion to the normal power of rope generally can be discovered by proper inspection, we know nothing to the contrary. It might be otherwise in the case of an iron chain. We cannot say that the plaintiff was negligent. He had a right to expect due care from the defendants as to their permanent appliances. There was evidence that he was employed to do what he was doing; his position was seen by one of the defendants, and it may be that to do his work called on him at moments to be nearly under the block. Snow v. Housatonic Railroad, 8 Allen, 441, 450. Hachett v. Middlesex Manuf. Co. 101 Mass. 101. Spicer v. South Boston Iron Co. 138 Mass. 426. Kilroy v. Foss, 161 Mass. 138. Exceptions overruled. [51] the division, or on the death of any of the daughters without issue after the division, if no testamentary disposition has been made, the share of each child shall go to his or her heirs or distributees. The gift is to the trustees, and the children take only equitable interests, and up to the time of the division this interest is clearly for life. After the division the son’s share is absolute, and each daughter’s share is to be held on a separate trust, but we can find no language in the will by which the interest of the daughters in the property is enlarged; it still remains, we think, an interest for life. Collins v. Wickwire, 162 Mass. 143. This is the principal distinction between the present case and Forbes v. Lothrop, 137 Mass. 523. The court in that case, from the language of the will, and particularly from the clause that at the death of the wife the whole property was “ to be equally divided among all my children and their heirs by right of representation,” decided that the intention of the testator was to give to his daughter Mary the whole equitable interest in her share, which would pass to her heirs or distributees if she at her decease made no disposition of it “ by will or otherwise.” We can find no equivalent words in the present will. In the view we have taken of the extent of the plaintiff’s interest in the share set apart for her, it is unnecessary to consider whether, if the whole beneficial interest in the share absolutely belonged to her, she would be entitled to a decree for a conveyance, against the clear intention of the testator that the share should be held in trust for her during her life.