Each case went to the jury upon the fourth count only of the declaration; and the jury were correctly instructed that the only ground upon which the plaintiff could prevail was that the trip-hammer was a defective machine; and they were further instructed that the burden was not upon the defendant to show that it was not defective but upon the plaintiff to show that it was.
The compressed air, which was the motive power of the hammer, reached it through a valve which was opened and closed by means of a lever hanging upon the machine and which is pushed toward or from an, oblique to a horizontal position as may be desired. When the lever is in one position the valve is open and the hammer moves. When the lever is in another position the valve closes and the hammer should not move.
The contention of the plaintiff in each case was that while both were at work tightening up the springs of the machine preparatory to using it, the hammer started automatically; and their theory was that there was a leak in the valve; and there was evidence in support of this theory.
The theory of the defendant was that the movement of the hammer was not automatic, but that in some way, either accidental or otherwise, one of the plaintiffs moved the lever thereby opening the valve and letting on the power; and it contended that the plaintiffs had failed to show to the contrary.
Each case is before us upon exceptions to the refusal of the trial judge to give certain of the rulings requested, to the exclu
The third, fifth and seventh requests were rightly refused. They assumed as a fact an automatic starting, the very fact in dispute. On this point the jury were told in substance that if the jury were satisfied that the hammer did start without the movement of the lever, they might find the machine defective; and the judge left to the jury the question whether the hammer did so start.
The charge was full, apt and correct, and neither plaintiff has any just ground of complaint as to the manner in which the judge dealt with these and the other requests.
No error is shown in the exclusion of evidence as to the custom and practice adopted in the shop by all who worked upon this. machine. It was offered as bearing only upon the question of the due care of the respective plaintiffs. The question was excluded upon the ground that “the whole thing has been covered.”
The bill of exceptions does not purport to give all the evidence bearing upon the due care of the plaintiff. Under these circumstances we cannot say that there was prejudicial error in the exclusion of the question. Moreover it does not appear what the answer would have been.
Exceptions overruled.