194 Mass. 170 | Mass. | 1907
The case was properly submitted to the jury, and the instructions requested by the defendants were rightly refused. The three main questions are extremely close. It is not for us to decide upon the facts, however, but only to determine whether there was sufficient evidence to support the finding by the jury for the plaintiff.
1. There was no want of due care on the part of the plaintiff in relying upon the signal of the man, whom he had seen giving directions to workmen about the premises, and who had, during the three or four days of his work, given him the signal to drive into the cellar, under conditions which had been before found to be reasonably safe. There was evidence that when he reached the point where he could see the changed condition of the way into the cellar, it was impossible for him to hold his team. Although the force of this evidence was considerably shaken upon cross-examination, yet upon the whole it cannot be said that there was insufficient ground for finding the fact to be as stated by the plaintiff. If there was no negligence on his part in driving his heavily loaded gear upon the sidewalk, and if after reaching this place, which was the first point on his route fi’om which he could see the changed and dangerous condition of the way over which he was to drive into the cellar, it was beyond his power to stop his team, in that case the burden upon him of showing his own due care was sustained. If the jury found this to be the situation, then there was no occasion for the application of the maxim volenti non jit injuria.
2. If the evidence of the plaintiff be taken at its full value, it warranted a finding that although he knew of the excavation going on in the cellar, and the likelihood of 'general changed conditions there, yet habitually during his experience one who
3. The averments of the plaintiff’s declaration at the lowest set up an employment of the plaintiff by Rafter as a driver and the delivery as such driver of quantities of stone to the defendants on the premises for the purpose of building, and a statemént of the duty on the part of the defendants to provide for Rafter and his servants a safe place for the delivery of the stone. The word “ delivery ” as thus used should not be construed in a narrow or technical sense, and, when read in connection with the other language of the declaration, it imports a transfer of possession of the stone from Rafter through the agency of the plaintiff to the defendants, with the latter’s consent. This being so, a person engaged in such delivery was rightfully upon
4. What has been said disposes of all the requests for rulings except the twelfth. This was properly refused. A trial judge “ cannot be required to give a ruling based upon some particular view of a portion of the testimony.” Shattuck v. Eldredge, 173 Mass. 165, 168.
Exceptions overruled.