Latus v. Boston Elevated Railway Co.

By the Court. The plaintiff, both in direct and redirect examination, specified “the fifth, sixth, or seventh steps from the bottom” of stairs in a station of the defendant as those by reason of the slippery condition of which he contended that his injuries resulted. He was bound by this definite statement. There was nothing else in his testimony or in the evidence to shake its force. He was bound by it. Sullivan v. Boston Elevated Railway, 224 Mass. 405. His further testimony that the ice on the stairs was “about five feet from the bottom, up” was not a modification of his clear description of particular steps. It follows that the judge correctly restricted the evidence to the condition of the three steps thus identified. The judge rightly declined to discharge the empanelled jury on the ground that another person among the veniremen, but not on the jury, was in the employ of the defendant. [236] There is nothing in the state of the record which required the judge to give the plaintiff’s requests for rulings touching this matter. They were impertinent to any evidence in the case. Rich v. Silverman, 216 Mass. 195. Other exceptions taken, not having been argued, are treated as waived. Exceptions overruled.