This is an action of tort for personal injuries caused by the running away of a pair of horses with a cart belonging to the defendant and their striking the plaintiff. All the evidence from eye-witnesses as to how the horses came to run away showed that the driver was at the tail of the cart when the horses started, and that they were suddenly frightened by a barrel being rolled against their heels by a boy. There was no evidence that the driver was not there unless by a remote and uncertain inference from the testimony of some witnesses that he did not appear for fifteen or twenty minutes upon the *601scene of the accident, which was eight hundred and fifty feet away from the point from which the horses started. Naturally upon such evidence the argument for the plaintiff said nothing about the driver’s being away from his horses, but was directed to the way of leaving the reins, to the failure to see the barrel more quickly, and so forth. Naturally also the court in its charge followed the course of the argument and instructed the jury upon the aspects of the case which had been discussed. But at the end of the charge the counsel for the plaintiff objected that the judge had assumed that the driver was by his cart when the horses started, and requested him to call the jury’s attention to the position that the driver was not by his cart at that time. The only exceptions are to the refusal of the court to do as requested and to the charge as assuming that the driver was by the horses. The charge left it entirely open to the jury to find that the driver was away, and assumed nothing more than the argument did. If after hearing it the plaintiff’s counsel regretted that he had not adopted a different line, or for the first time thought of the possibility of putting his case upon a new ground, he was too late and could not call upon the court to help him. Especially was the judge justified in declining to put forward for the first time at the end of his charge a view of the case for which there was but the merest scintilla of evidence, if it fairly could be said that there was any evidence at all.
Exceptions overruled.