| Mass. | Dec 29, 1914
This is an action to recover for personal injuries received by the plaintiff while in the employ of the defendant as a teamster. The presiding judge ruled that the plaintiff could not recover under the second count, and the case was submitted to the jury upon the first and third counts. The first count alleged that the defendant negligently failed to furnish the plaintiff with a safe and proper wagon with which to perform his work and negligently overloaded it, by reason of which it broke and the plaintiff was injured. The third count alleged that the defendant negligently furnished the plaintiff with a defective wagon and negligently overloaded it and that the defendant negligently failed to inspect the wagon and the load upon it, whereby it broke and the plaintiff was injured. Both counts were for the same cause of action.
The wagon was not owned by the defendant, but was borrowed from the owner by one Patton, who had caused it to be loaded with old lumber which he desired to have carried from Wakefield to Melrose. It was in controversy as to whether the plaintiff was in the employ of the defendant in driving the team on the afternoon of the accident. The defendant testified that he told the plaintiff that he (the plaintiff) could use the defendant’s horses, but that he had no wagon suitable for such a job. There was evidence to show that the defendant had nothing to do with hauling the lumber, and that the plaintiff was not in his employ at that time but had finished his work that day at noon.
On the other hand, the plaintiff offered evidence to show that the defendant ordered him in the course of his employment to take a pair of the defendant’s horses and haul the wagon loaded with lumber to Melrose. There was further evidence to show
In the course of the trip, while crossing an electric railway track, the right hind wheel of the wagon broke, causing the injury to the plaintiff complained of. There was evidence that some of the spokes in the wheel which collapsed were decayed, loose and broken in the hub, and that its defective condition could have been discovered upon reasonable inspection. There was also evidence from which it could have been found that the wagon was overloaded and that the weight upon.it was excessive and unreasonable.
Without further reciting the evidence, we are of opinion that its weight was for the jury, and we do not understand that the defendant contends to the contrary; but he excepts to the refusal of the presiding judge to give certain instructions.
The record shows that the instructions upon all the questions upon which the parties were at issue were full and accurate. The defendant’s seventh, eleventh and fifteenth requests were given in substance. The judge was not obliged to single out a portion of the evidence and instruct the jury upon its effect, and therefore there was no error of law in refusing the defendant’s fourth and twelfth requests. Grier v. Guarino, 214 Mass. 411" court="Mass." date_filed="1913-05-20" href="https://app.midpage.ai/document/grier-v-guarino-6432197?utm_source=webapp" opinion_id="6432197">214 Mass. 411, 414. The defendant was not entitled to have the eighth, ninth and tenth requests given, in the language requested; besides an examination of the judge’s charge shows that these requests were given in substance. The thirteenth request could not have been given because there was no evidence to warrant a finding that the plaintiff concealed from the defendant the condition of the wagon. The sixteenth was covered in substance by the instructions. The defendant contends that the presiding judge should have explained to the jury what was meant by the statement that the burden of proof is on the plaintiff, but none of the requests raise that ques
Exceptions overruled.