| Mass. | Jun 21, 1890
The first instruction requested was rightly refused, for the reasons given in Fisher v. Cushing, 134 Mass. 374" date_filed="1883-03-01" court="Mass." case_name="Fisher v. Cushing">134 Mass. 374.
The court was not required to express any opinion upon the question whether the obligation of the defendant to keep the way safe was in all respects the same as that of the city of Boston. The care' which the court instructed the jury the defendant was bound to exercise with reference to the coal-hole was ordinary care, and this is substantially the degree of care which the defendant contended for in his second and third requests. This degree of care would not necessarily be satisfied by providing a proper coal-hole and cover, without taking any pains to see that they were kept in proper condition. These requests, so far as they were not included in the charge of the court, were rightly refused.
The fourth request was rightly refused, because it assumes that the cover of the coal-hole was not fastened at the time of the accident, and that this was the cause of the accident, and because, if this assumption were true, it was not necessary, in order to show negligence on the part of the defendant, to prove that he knew that the cover was not fastened. To render him liable, it was enough if he ought to have known it; that is, if he would have known it if he had exercised due care.
The fifth request was rightly refused, because the exceptions state that it was admitted “that the building and coal-hole were under the care of a janitor and agents employed by the defendant,” and the defendant would be liable for their negligence within the scope of their employment.
The instructions given were sufficiently favorable to the defendant.
Exceptions overruled.