222 Mass. 322 | Mass. | 1916
The plaintiff, a deaf and dumb child four years and four months old, was injured by having one of his feet crushed by the forward left wheel of a single truck, closed car of the defendant. At the conclusion of the charge it was conceded that the boy was incapable of exercising care on his own behalf, and that his mother was not lacking in due care in her attendance upon him. The jury returned a verdict for the defendant. The case is here on the plaintiff’s exceptions to the judge’s refusal to give his sixth, seventh, eighth, ninth and tenth requests for instructions, and to the giving of the defendant’s third and fifth requests.
1. The sixth request related to the speed of the car. The plaintiff was not entitled to have the court adopt his language, framed in argumentative form, and emphasizing selected facts in his interest. The subject was fully and fairly covered by the charge, the judge saying: “It is for you to determine upon the evidence whether or not the car was or was not going at a reasonable rate of speed under all the circumstances in view of the place on the street, character of the place and everything else proper to be considered. Was the motorman traveling and running his car at a reasonable and proper rate of speed under the circumstances?” Later he said: “If you find that the motorman was running his car at an excessive and dangerous rate of speed, carelessly and negligently, and ran over this boy, he being in the exercise of due care, then the defendant company is responsible in damages for any injuries which he sustained.” And finally: “In passing upon the question whether the motorman was in the exercise of reasonable care, you will take into account all the circumstances as disclosed by the evidence, including the time and place of the accident, the speed of the car, and all the evidence in the case.” No error is shown in the refusal to give the instructions requested.
2. The same is true of the eighth request, which emphasizes the motorman’s duty to be on the lookout for certain persons crossing the street. The charge not only fully covered the issue of the motorman’s negligence in general terms, but specifically called attention to this phase of the case when the judge instructed
1 3. The subject of the ninth request was sufficiently covered in the charge.
4. The tenth, — so far as it relates to the care of the plaintiff, and that of his mother in whose charge he was at the time of the accident, — became unnecessary by reason of the defendant’s concession as to due care. The suggestion as to the conduct of some third person was dealt with adequately in the instruction: “If the plaintiff was being followed or chased by some one and ran out on to the track and he was injured, he may recover if the motorman was negligent.”
5. The plaintiff’s seventh request (which was refused) and the defendant’s fifth request (which was given) deal with the motorman’s duty to ring the gong. As an abstract proposition of law it was not correct to say that “the failure to ring the gong . . . is no evidence of negligence.” But the only negligence involved in this case was an alleged failure by the motorman to perform some duty that he owed to the plaintiff, which contributed to the plaintiff’s injury. Even though the failure to sound the gong might constitute actionable negligence with respect to some other person, plainly it could not have contributed to this accident, as the plaintiff was a deaf mute and could not have heard the gong, if sounded. It follows that there was no error in refusing the plaintiff’s request, and no reversible error in giving that of the defendant. Burns v. Jones, 211 Mass. 475.
6. The only criticism made by the plaintiff to the giving of the defendant’s third request is, “that it is not a correct interpretation of the law of the Commonwealth on the question of the due care of the plaintiff.” As such it became immaterial, however, when the defendant later conceded the plaintiff’s due care. Its correctness in other respects, even if questioned, could not be tested, in the absence of “all the evidence” on which the instruction was based. Barnes v. Loomis, 199 Mass. 578.
Exceptions overruled.
