1. The exception to the refusal to rule that there was no evidence that the plaintiff was in the exercise of due care is not argued upon the defendant’s brief and we treat it as waived.
2. It is conceded that the team belonged to the defendant, and the testimony of Curran that during the month of June there was a young boy about sixteen years old taking parcels from a store on the defendant’s team, in connection with the description of the boy who was driving the team when it ran over the plaintiff, and the defendant’s own testimony as to the boy Eddie Morrow was sufficient evidence that the boy who was driving the team when it ran over the plaintiff was the defendant’s servant to justify the judge in sending that question to the jury.
3. There was also sufficient evidence of negligence on the part of the driver. The evidence tended to show that as the plaintiff was walking across the street which was not crowded either with vehicles or foot travellers the team which just before had been delivering goods on the other side of the street was driven at a trot over a pile of sand and against the plaintiff and that thereupon the driver lashed the horse with the reins and went off without stopping.
Exceptions overruled.