Action on the case to recover damages for personal injuries sustained by the plaintiff while working in and upon a gravel car of the defendant. Plea, the general issue. At the close of the evidence the presiding Justice ordered a verdict for the defendant, and the plaintiff excepted. The rescript says: "The plaintiff, a laborer employed by the City of Auburn, seeks to recover damages for an injury sustained by him while removing gravel from a dump car belonging to defendant. The gravel was in process of delivery under a contract between the city and the defendant. Whether, under the terms of the contract, the gravel was to be delivered to the city upon the cars or along the track was sharply controverted. It seems clear, however, that delivery was to be made along the track by defendant and not upon the cars to be removed therefrom by the city.

"There is evidence tending to show that the foreman in charge of the employees of the city directed them to clean out the cars which had been dumped by the employees of the defendant and that plaintiff’ was among those who undertook to do so. There is no evidence, however, showing, or tending to show, that the action either of the foreman or of the plaintiff was at the request or by consent of the defendant or its employee. The plaintiff was a volunteer and cannot recover.”