Alderman v. Noble

LUMMUS, Justice. The evidence warranted a finding of the following facts. The defendant and his mother operated a farm. The plaintiff occupied a house of theirs as tenant. By arrangement between the parties, the plaintiff cut wood on the farm on shares, stacking what was cut in two equal piles, one for himself and one for the defendant, and both parties then joined in sawing both piles, using a circular saw, owned by the defendant, which was operated by gasolene. While they were sawing wood from the defendant's pile, the defendant negligently accelerated the speed of the saw, the plaintiff's hand was pulled into the saw, and his fingers were cut. Without discussing the facts in detail, it is enough to say that the Judge was not bound to rule, with the burden of proof on the defendant, that either contributory negligence or assumption of risk (Leary v. William G. Webber Co., 210 Mass. 68, 96 N.E. 136; Manning v. Prouty, 260 Mass. 399, 402, 157 N.E. 364; Engel v. Boston Ice Co., Mass., 4 N.E.2d 455) had been established as matter of law. See G.L.(Ter.Ed.) c. 152, § 67. The Judge instructed the jury, without exception, that 'in order to maintain the action * * * the plaintiff must satisfy you by a fair preponderance of the evidence that the relation of master and servant or of employer and employee existed at the time that this accident happened.' The verdict was for the plaintiff. The only exception of the defendant was to the denial of his motion for a directed verdict in his favor. He contends that there was no evidence that the plaintiff was his servant.