The verdict was rendered upon a count which alleged that the injury was caused by the negligence of the superintendent, whereby a timber was improperly and unsafely loaded and conveyed, and the road or passageway along which the timber was conveyed was suffered to be and remain in a defective condition. The case went to the jury under instructions not excepted to, save in so far as they were inconsistent with the defendant’s requests, and the instructions given are not stated.
1. It is unnecessary to consider whether the place over which the timber was being transported was part of the defendant’s “ ways,” within the meaning of St. 1887, c. 270, § 1. The only requests which can be construed to deal with that question are those that upon the whole evidence the plaintiff could not recover. As there was evidence tending to show that the superintendent *225was negligent in other matters than in suffering the road to be defective, the general rulings that the plaintiff could not recover would not have been justified by the consideration that the way was not within the meaning of the statute; and as no request was made for particular instructions applicable to that question, the defendant is not entitled to have it considered here.
2. In the opinion of a majority of the court, it cannot be said, as matter of law, upon the evidence as stated in the bill of exceptions, that the plaintiff was not entitled to recover. The defendant contends that the plaintiff did not show that the superintendent was negligent, or that the plaintiff was in the exercise of due care, and also that the danger was an obvious one, of which the plaintiff took the risk. But there was evidence tending to show that the gear on which the timber was loaded was used, loaded, and moved under the explicit personal direction of the superintendent, whose experience in transporting such timbers upon such a gear was great, and who had under his eye the road along which it must travel; that the superintendent gave an explicit order to the men to get on to the timber and hold it down; and that the plaintiff testified that this was his first experience with the transportation of such a timber upon such a gear. It is plain that the timber as loaded was more likely to tip up, slide, or cant than it would have been if laid with one of its broader sides flat upon the vehicle, and that the superintendent -might have ordered safer means to be used to keep the timber from tipping than that of requiring men to get on to the timber and hold it down. To what extent the experience of the plaintiff in farming, hauling stone, and logging made the danger to which compliance with the superintendent’s order would subject him knowú and appreciated by the plaintiff, whether he was in the exercise of ordinary care in obeying the order, and whether the superintendent was negligent in directing the men to get on the timber and hold it down, were, in the opinion of a majority of the court, questions for the jury.
Exceptions overruled.