230 Mass. 369 | Mass. | 1918
After a verdict for the plaintiff we must assume that the jury believed the testimony most favorable to him;- and on the evidence they could find the following facts: The plaintiff, a boy of twelve years, was employed by the defendant as a helper on his pedler’s wagon, and was injured on the first day of his employment. Across the rear end of the open wagon was a box containing fish, at the front end were barrels of apples and boxes of vegetables, and in the middle were bags filled with potatoes. At the time of the accident the plaintiff, as directed by the defendant,
No question of pleading arises. As the defendant was not insured under the workmen’s compensation act, he cannot avail himself of contributory negligence or assumption of risk on the part of the plaintiff. St. 1911, c. 751, Part I, § 1. Bernabeo v. Kaulback, 226 Mass. 128.
The only issue on liability was that of the defendant’s negligence; and on that the plaintiff was rightly permitted to go to the jury. Moloney v. Pemberton Co. 219 Mass. 460. See Kean v. New York Central & Hudson River Railroad, 210 Mass. 449; Keating v. Hewatt, 212 Mass. 577.
Exceptions overruled.