Ponticelli v. Cataldo

Wait, J. The exceptions in this case must be overruled. Those taken to the admission of evidence were waived. There was contradictory evidence in regard to the speed of the defendant’s automobile, and in regard to the position of that automobile and of the plaintiff at the moment of his leaving the sidewalk "to trot” across the street. The jury were instructed that if the car "was within four or five feet or was at Oxford Park when this boy stepped from that curbing, then he was not in the exercise of due care .... If, looking and not seeing the car at that place, he then walked or ran across that street and was struck by this car, his fault is partly responsible for his injuries, and he cannot recover, and I give that to you as a matter of law.” We must assume that the jury followed the judge’s instruction, and, consequently, that they must have found that the car was not at Oxford Park or within four or five feet of the plaintiff when he started across the street. We cannot say at what place they did locate it; but if at any other than the position specified in the instruction, there was evidence from which, as matter of law, the jury might have found both negligencé and due care. The judge could not have taken the case from the jury. He was not bound to give the requests for instructions in the words of the prayers. The instructions actually given covered fully all of the requests to which the defendant was entitled. We find no error in the parts of the charge to which exception was taken. O’Keefe v. United Motors Service, Inc. 253 Mass. 603. Exceptions overruled.