McCarty v. Clinton Gas Light Co.

Knowlton, C. J. It is unnecessary to consider other parts of this case, for there is nothing to show that the plaintiff’s husband, at the time of the accident, was in the exercise of due care. He was found dead on the floor of the engine room, in the passageway between the rapidly revolving fly wheel and the wall of the building. He was the engineer in charge of the engine, and no one else was present at the time of the accident. The top of his skull was cut off, and it seems likely that this was done by the fly wheel or some of its attachments. If it is possible that the accident happened while the deceased was in the exercise of due care, it is equally possible and more probable [77] that his negligence was one of the causes, if not the sole cause, of his death. In Tyndale v. Old Colony Railroad, 156 Mass. 503, this court said: “ Where there is an entire absence of evidence as to what the person killed was doing at the time of the accident, it is not enough to show that one conjecture is more probable than another. There must be some evidence to show that he was in the exercise of due care.” Similar language is used in Gleason v. Worcester Consolidated Street Railway, 184 Mass. 290. See also Shea v. Boston & Maine Railroad, 154 Mass. 31; Cox v. South Shore & Boston Street Railway, 182 Mass. 497, 499; Irwin v. Alley, 158 Mass. 249; Felt v. Boston & Maine Railroad, 161 Mass. 311; Mathes v. Lowell, Lawrence, & Haverhill Street Railway, 177 Mass. 416; Murphy v. Boston & Albany Railroad, 167 Mass. 64. Exceptions overruled.