Counsell v. Hall

• Decision Date: 04 January 1888
• Citation: 145 Mass. 468,14 N.E. 530
• Parties: COUNSELL v. HALL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 468

14 N.E. 530

COUNSELL v. HALL.

Supreme Judicial Court of Massachusetts, Bristol.

January 4, 1888

COUNSEL

J. Brown, for plaintiff.

The instructions asked for and refused were nearly identical with the statement of the law on the points raised in the following cases: Holmes v. Clarke, 6 Hurl. & N. 349 (1861;) Clarke v. Holmes, 7 Hurl. & N. 937. The same has been held as a true statement of the law in Patterson v. Railroad, 76 Pa.St.389; Ladd v. Railroad Co., 119 Mass. 412, 414. In Ladd v. Railroad Co., 119 Mass. 412, the court, while holding that under the circumstances proved in that case the plaintiff could not recover, stated the law as follows, (GRAY, C.J.:) "This is not like a case in which the premises or instruments, upon or by means of which the business is carried on, are temporarily defective, in which case the master may be liable, especially if he has promised the servant to repair them and has failed to do so." Several cases are referred to, including two of the above quoted, thus showing that the instructions requested are in accordance with doctrines of law heretofore approved by this court, and which do not appear to have been doubted. The instructions requested should therefore have been given, as directly adapted to the case on the facts in evidence.

Walter Clifford, for defendant.

The instruction asked for was not necessary for the proper presentation of the case to the jury. If the presiding justice "stated the law accurately and all the law which the evidence in the case" required to be stated, he will have done his whole duty. Howes v. Grush, 131 Mass 211. The presiding judge is not required to adopt the phraseology of counsel, although the prayer which was refused asked for nothing which he had not a right to ask. Peterson v. Farnum, 121 Mass. 485. A request for specific instruction based on the assumption of a fact in controversy is properly refused. Ely v. James, 123 Mass. 43; Com. v. Carroll, 122 Mass. 18; Pearson v. Mason, 120 Mass. 57. In the case at bar the request asked for is based on specific facts taken from a large amount of testimony; and from the report it is impossible to say how far those facts may have been modified by the other evidence in the case and thereby rendered improper to be stated to the jury as set out in the request. It appears from the report that the plaintiff entered upon his employment with the knowledge that the defendant was unskilled and assumed a responsibility commensurate with the situation, and that, after the alleged negligence of the defendant, he continued to use the machinery which he had assisted in repairing. These facts must be held to modify the degree of responsibility which might otherwise rest upon defendant, and are wholly inconsistent with the facts stated in the request because the facts in the request assume a relation of master and servant...