The plaintiff, an employee of the defendants,was injured by falling on a concrete walk on the defendants’ premises, which led from their mill to a public street. The declaration contained three counts, two at common law, and one under the St. of 1887, c. 270, §1, cl. 2. The ground relied on under all the counts was that the walk was dark and slippery, being covered with ice, without ashes or sand upon it. There was conflicting evidence on these points; and, under the instructions of the court, the jury must have found that the defendants were not guilty of negligence in either of these respects. If the ruling requiring the plaintiff to elect to proceed upon the common law counts or upon the statutory count was not within the discretion of the presiding judge, the plaintiff was not injured thereby, as the ruling was given at the close of the evidence, and the issues were the same; and she has no ground of exception. Brady v. Ludlow Manuf. Co. 154 Mass. 468.
The remaining exception of the plaintiff is to the refusal of the presiding judge to rule that the jury would be justified in finding that there was negligence, upon all the evidence, if they were satisfied that there was in that walk, or on any part of it given to common use, the absence of any material which would prevent a person using due care from falling, even though the walk and ice were smooth.
We are of opinion that the refusal to give this ruling affords the plaintiff no ground of exception. The jury were fully instructed as to the obligation of the defendants to provide a reasonably safe way for their employees ; and the question was left to them whether the defendants had exercised reasonable *522care in providing such a way. No exception was taken to the instructions given; and the bill of exceptions states that other instructions were given which were not excepted to. The judge was not required “ to single out some particular portion of the evidence for special comment and remark.” Littlefield v. Huntress, 106 Mass. 121, 127. McDonough v. Miller, 114 Mass. 94. Strong v. Connell, 115 Mass. 575. Dahill v. Booker, 140 Mass. 308. Neff v. Wellesley, 148 Mass. 487.
But, apart from this consideration, the jury ought not to have been instructed that they would be warranted in finding negligence from the mere fact of there being smooth ice on the path. The time it had remained there was an important element. It was a question for the jury, on all the evidence in the case, whether the defendants had exercised reasonable care.
Exceptions overruled.