195 Mass. 284 | Mass. | 1907
The plaintiff while being transported as a passenger was injured by the derailment of the defendant’s car owing to a wheel on one of the trucks being loose. In the operation of its road, the defendant bought of a reputable manufacturer the cars with their equipment, and such appliances as might be required to maintain them in suitable repair. By the
The plaintiff complains that the instructions given were not in conformity to this rule. If the first paragraph is separated from the context they are open to this criticism, for the jury well might have inferred that as the defendant bought from a repu
By the report it further is stated that if properly pressed upon the axle a car wheel will not become loose, and the jury were instructed in substance that if the wheel was defective through the fault of the manufacturer, and after delivery the defect was undiscoverable by the exercise of proper care, the defendant was not responsible. But, while it should not be overlooked, the question whether the carrier should be held liable where the defect is of a nature which by the exercise of ordinary care could have been discovered and remedied by the maker during the process of adjustment at the factory need not be decided, as it has not been raised on the plaintiff’s brief or argued by his counsel.
In accordance with the terms of the report the verdict is to stand.
So ordered.