McCart v. Squire , 150 Mass. 484 ( 1890 )

Knowlton, J.

The defendants’ requests for instructions were presented to the presiding justice at the close of the charge which covered the principal questions in the case. The first instruction asked for stated a proposition of law on the assumption that White “ was hired and required to perform habitually, and that he did perform habitually, daily manual labor as one of the gang of workmen.” After giving it, the presiding justice, apparently by way of caution, reminded the jury that the question was as he had previously stated it, whether White “ did or did not solely or principally exercise the duties of superintendence.” He told them that a finding, which included somewhat less than the hypothesis stated in the request, namely, that White “ performed manual labor every day, or upon occasion, in different parts of the department,” would not prevent their deciding that he was a superintendent within the meaning of the statute.

The second request for an instruction assumed the same facts as the first, and also the fact that White’s negligence was in an act of the ordinary manual labor in which he was engaged. After complying with this request, the justice, without referring to the second branch of the assumption, repeated to the jury, in slightly different language, the first part of the caution which he had given in connection with the former instruction.

Whether the additions which the judge gave to the instructions be deemed a material modification of them, or merely instructions not inconsistent with the others in a field not covered by them, it is obvious that the judge thought they were not in conflict with those requested, and he expressed that opinion to the defendants’ counsel. At the request of the judge, the counsel then attempted to point out the portion of the charge to which he objected. The judge again expressed the opinion that he had laid down the law as the defendants’ counsel then stated it, and told the jury that he again gave the ruling in the language which the counsel then used. The judge understood that he had complied with the defendants’ requests, and that no exception was insisted on, and the defendants’ counsel said nothing to indicate dissatisfaction with the last instruction, which purported briefly to cover the whole subject.

If the defendants’ counsel still thought his requests had been materially modified, and intended to save an exception, it was his duty, in fairness to the plaintiff, as well as to the judge, to make known his dissent from the views last expressed by the presiding justice, and his wish to save an exception. The plaintiff’s counsel, to avoid an exception, might then have suggested some qualification of the charge, or the judge might of his own motion have given further instructions which would have prevented the possibility of misunderstanding.

We are of opinion that the exception was not properly saved.

Petition dismissed.