Smith v. Gamming , 225 Mass. 285 ( 1916 )

Bralet, J.

The plaintiff, a boy of eight years, while at play in a public highway was injured by a jet or stream of hot water thrown upon him by a steam pump and pipe owned or controlled by the defendant. And, the plaintiff having recovered a verdict, the case is here on the defendant’s exceptions to the admission and exclusion of evidence.

The plaintiff without objection having put in evidence certain photographs of the pump with its surroundings, which the jury could find were taken within four days after the accident and a witness for the plaintiff, whose evidence the jury were at liberty to believe, having testified that “the appearance of the pump and of the street in the photographs” was the same as when he saw them the day after the injury, the testimony of another witness that from his observation of the pump four or five times a week for approximately four weeks preceding, and two weeks after the event, the representations in the photographs corresponded with his recollection, was clearly admissible. Its weight and application were for the jury under proper instructions. Laplante v. Warren Cotton Mills, 165 Mass. 487, 489. Shepard v. Creamer, 160 Mass. 496. White Sewing Machine Co. v. Phenix Nerve Beverage Co. 188 Mass. 407, 408.

The testimony of one Hall, the defendant’s night watchman who operated the pump and had a fireman’s license of the first class, presumably granted under R. L. c. 102, § 81, as amended by St. 1905, c. 310, § 1, and St. 1911, c. 562, § 3, when called as a witness by the plaintiff, explaining the location of the shut-off valve, which was not shown in the photographs, as well as his statement that the pump was a suction pump which would have to be primed with water “in order to get a lift,” also was competent to show the construction and method of operation. Roskee v. Mount Tom Sulphite Pulp Co. 169 Mass. 528.

The question put to the defendant by his counsel, “Now, was the way in which this pump was put in place and guarded by this fence the usual way in which pumps were installed and guarded in work of that kind? ” was excluded rightly. While the defendant was entitled, as the judge correctly ruled, “to show ... in detail how that pump was placed, how it was guarded, and everything in that regard relevant or competent upon that point,” proof of the usual mode of installing and guarding similar pumps would not be a defence if the jury found that the defendant knew or in the exercise of due diligence should have known that, because of its location, the operation of the pump might endanger the safety of persons using the street. Shepard v. Creamer, 160 Mass. 496, 498. French v. Sabin, 202 Mass. 240, 243.

We have considered all the exceptions which have been argued, and finding no error of law they must be overruled.

So ordered.