Golden v. Mannex

Sheldon, J. It is not necessary to repeat the evidence. The jury could well find that the plaintiff was in the exercise of due care. They could find that the cable in use had been subjected to undue strains by lifting heavier loads than it was adapted for, that some of its strands or wires had become broken, and that it was so weakened as to be unsafe for the purpose for which it was being used. They could find that the defendant had not taken proper care to inspect it, and was negligent in not having discovered its weakened condition and in allowing it to be used on this occasion. It follows that his requests for rulings rightly were refused. Moreover the very fact that the cable broke as it did was some evidence that it had become unsound. Doherty v. Booth, 200 Mass. 522, 525. And an unsuccessful attempt of the plaintiff to [505] explain the accident would not prevent the drawing of this inference. McNamara v. Boston & Maine Railroad, 202 Mass. 491, 497. McDonough v. Boston Elevated Railway, 208 Mass. 436, 440. Whether the attempt was unsuccessful was of course for the jury to say. The testimony of Johnson that the effect of the wearing down of the strands on a cable of this type would be to diminish its strength was not incompetent. We cannot say that this was a matter of common knowledge, as in Doherty v. Booth, 200 Mass. 522, 526, in view of the testimony put in by the defendant that this abrasion would n^t have the effect claimed by the plaintiff. The testimony of Woods, which the defendant has argued ought not to have been admitted, was indeed objected to by the defendant, but its admission was not excepted to. We do not intimate that the exception could have been sustained if it had been taken. What we have said disposes of all the points that have been argued. Exceptions overruled.