Beal v. Lowell & Dracut Street Railway Co.

157 Mass. 444 | Mass. | 1892

Allen, J.

The only exception taken was “ to the charge as above given, relating to the law of the due care required of a passenger on electric street cars.” The case was not withdrawn from the jury, but was submitted to them to determine all the questions of fact, including that of the plaintiff’s due care. No special request for instructions was made. No particular was pointed out in respect to which the charge was objected to, except as above.

The presiding judge expressly told the jury that he was not going to decide the question whether the plaintiff was careless or not, but that he should leave it to them; and he ruled that, “ if standing upon the platform as above described would be an act of carelessness, or a failure to exercise such a degree of care as men of ordinary prudence would exercise under the same circumstances, and the plaintiff was thereby hurt, he cannot recover.” This was correct. There was no error in the rule of law. The criticism of the plaintiff’s counsel really comes to this, that the tone of the charge was unfavorable to the plaintiff. But this is a matter not to be revised on a bill of exceptions, unless some rule of law was incorrectly stated, or unless the charge violated the statute which provides that the courts shall not charge juries with respect to matters of fact, Pub. Sts. c. 153, § 5, or unless it is apparent that the attention of the jury was so far diverted from the true questions of the case as to amount to a mistrial and a failure of justice. General criticisms of a charge are always discountenanced by an appellate court. Its functions are limited to correcting errors of law.

In the present case we find no rule of law incorrectly stated. The question of the plaintiff’s due care was properly a question for the jury. The rule as to contributory negligence was given accurately. Mo objection was taken, at the conclusion of the charge, that it was in violation of the statute which forbids courts to charge with respect to matters of fact, nor has the argument before us been put upon that ground, nor has the statute itself been referred to or cited by the plaintiff’s counsel. The attention of the jury was not diverted from the true questions of the case, but was very pointedly called to those questions, and we are unable to see that the result of the trial shows any failure of justice.

The plaintiff much relies on the recent case of Corlin v. West End Street Railway, 154 Mass. 197, as establishing a doctrine inconsistent with that laid down by the presiding judge at the trial. The substance of the decision in that case was, that, under all circumstances, the question of the plaintiff’s due care ought to have been submitted to the jury, and that it was error to withdraw it from the jury, and to rule, as matter of law, that the plaintiff was not entitled to recover. The entry must be,

Exceptions overruled.