Guiney v. Union Ice Co.

Braley, J. If the plaintiff had not been in the car from which the ice was being taken and placed on his wagon he would not have been injured by the glancing and unintentional blow of an ice pick in the hands of a workman of the defendant engaged in transferring the ice. It is apparent from the plaintiff’s uncontradicted testimony that he was not required to assist in loading the ice, and until it was loaded he “had nothing in particular to do in the car.” If nothing more appeared he must be held while in the car to have been at most a mere licensee to whom the defendant owed no duty except to refrain from the infliction of wilful injury, of which there is no evidence. Freeman v. United Fruit Co. 223 Mass. 300, 302. But to meet this initial difficulty, and, after the plaintiff in cross-examination had reiterated that he had “nothing to do there except to wait for the ice,” he was asked in redirect examination, “Was there any reason other than you testified to? ” when there followed a colloquy between counsel for the plaintiff and the presiding judge during which the judge said, “His duty did not call him in there,” and the witness, interposing, said, “Not at that time.” While the witness immediately was told by his counsel “ Don’t you answer,” it is clear from all of his evidence, including this statement, that unless some sufficient reason not pre [281] viously disclosed was given for Ms presence in the car Ms rights had not been enlarged, and he could not recover. The question finally having been excluded, the plaintiff contends there was error and that a new trial should be granted. But no offer of proof, nor any statement showing the answer expected was made. Nor can we infer from the record what the answer might have been. Under such circumstances it cannot be held as matter of law that the ruling was wrong. Bachant v. Boston & Maine Railroad, 187 Mass. 392, 396. Coolidge v. Boston Elevated Railway, 214 Mass. 568, 571. Exceptions overruled.