O'Brien v. Nute-Hallett Co.

59 N.E. 65, 177 Mass. 422, 1901 Mass. LEXIS 664

Opinion

Barker, J.

The court below was right in refusing to order a verdict for the defendant. The assurance of the superintendent that the bin was all right when he and the plaintiff were examining the bin, coupled with the order to come away from it, and the subsequent order for the plaintiff to get into the bin, justified a finding that the plaintiff was in the exercise of due care, and that the superintendent was negligent in ordering the plaintiff into the bin.

The contention that the plaintiff could not avail himself of the superintendent’s statement that the bin was all right, because it was not alleged in the declaration, is not shown to have been made at the trial, and is not open.

Kxceptions overruled.