Power v. Beattie

Rugg, J. 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 [176] appeared to be exercising general control over the men at work about the place had beckoned him forward, and at all such times he had been able to drive into the cellar with safety, and that he had been in the habit of stopping on the opposite side of the street to await this invitation. Although the plaintiff was unable to identify this man, nevertheless, it appearing that the defendants employed a foreman and a sub-foreman, both of whom were upon or about the premises at the time of the accident, the jury may have inferred in connection with other evidence that one of these men gave the signal to drive forward. Both of these men testified that they did not call to the plaintiff to come on, but this particular testimony may have been discredited by the jury. As it did not appear that any other workmen were in or about the cellar save those in the employ of the defendants, the jury might have found that a man, who for three or four days had been giving directions to the workmen, and who had continuously told the plaintiff to come .on, whenever he had driven into the cellar, was acting under the authority of the defendants. All these circumstances' together are enough to support a finding of negligence on the part of some one, for whose doings the defendants were responsible, in thus inviting the plaintiff to drive down the way without advising him that its condition had been changed for the worse since his last previous trip. There was also evidence from both the plaintiff and Sheehy that the condition of the way into the cellar at the time of the accident was such as to make it dangerous to drive a heavily loaded team over it. 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 [177] the premises of the defendants, and was entitled to a reasonably safe place in which to make the delivery, or a reasonable opportunity to determine for himself whether he would undertake to make the delivery under all the circumstances. While the declaration is not to be commended as pleading, it is sufficient, upon all the evidence, to support the verdict. 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.