215 Mass. 467 | Mass. | 1913
The plaintiff seeks damages for the death of his intestate under St. 1907, c. 392, which authorizes recovery from a street railway company, whose servants in the conduct of its business negligently cause the death of a person, not a passenger or an employee, “in the exercise of due care.” The uncontradicted evidence shows that the plaintiff’s intestate at the time of the accident was nine years and nine months old. With other boys he was standing on a sidewalk looking at a Chinaman who was fixing something on the floor of a shop with a hatchet. The boys were “teasing” or “mocking” the Chinaman, who, after a few minutes, “got up with the hatchet in the air and walked toward the door.” Thereupon the boys, some of them in fright, scattered in different directions, the plaintiff’s intestate running into the street in front of a car of the defendant and being fatally injured. The only fair inference from the evidence is that the plaintiff’s intestate was engaged with the other boys in vexing the Chinaman. The testimony of one of his companions was that — “McLeod and Miele were with him. They were looking at the Chinaman teasing him. . . . The boys teased the Chinaman,” while that of another was, — “We were mocking the Chinaman.” There was nothing to impair the force of this testimony The contrary sentence in the statement of one of the plaintiff’s witnesses at the inquest, offered solely to contradict his testimony at the trial in the Superior Court in a different respect, was not affirmative evidence of the fact. The point to be decided is, whether a finding was warranted that the plaintiff’s intestate was “in the exercise of due care” as required by the statute as a condition of recovery. It is not contended that there is any evidence of active exercise of care by the deceased. But the plaintiff’s position is that his intestate was relieved from such exercise of care by reason of the fear into which he was thrown by the conduct of the Chinaman.
Much may be excused in a person under the impulse of fear induced by circumstances over which he has no control and for which he is not responsible. Conduct which unhesitatingly would be pronounced wanting in care in a person under normal conditions may be found prudent in one overwhelmed by fright or confronted with the necessity of instant action in imminent peril. Where
But whether there could be recovery if the intestate had survived and brought an action in his own name, it is plain that the present action cannot be maintained. If, while thus suffering from fright, fatal injuries are sustained by reason of impact with a street railway car, it cannot be said that the injured person was “actively arid actually” in the exercise of the diligence which has been held to be necessary in order that there may be recovery under this statute. It has been settled after elaborate consideration that the words “due care” in this statute mean something more than a negative and passive freedom from fault and require reasonably intelligent and energetic attention to safety, and stand on the same basis as if they were used in an indictment under the same statute. They are not satisfied by “invoking.for the test of the defendant’s liability under the statute its liability at common law in case of an action for compensation for an injury short of death.” Hudson v. Lynn & Boston Railroad, 185 Mass. 510, 521. It follows that the defendant’s request should have been granted to the effect that a verdict be directed in its favor.
It is urged by the defendant that this is a proper case for this court to exercise the power vested in it by St. 1909, c. 236, and
This course would be followed without discussion but for the decision of Slocum v. New York Life Ins. Co. 228 U. S. 364, which holds that “the right of trial by jury” secured by art. 7 of the Amendments to the Constitution of the United States does not permit the entry, after a verdict in favor of one party, of a judgment for the opposing party under circumstances like those in the case at bar. The question there arose in reviewing the action of the Circuit Court of Appeals which, under the conformity act (U. S. Rev. Sts. § 914) and following a Pennsylvania statute, had entered judgment in favor of the party for whom the trial court erroneously refused to direct a verdict. The substance of that decision is that it is an unconstitutional exercise of the power of legislation to authorize the entry of judgment in a case where a trial by jury has been had, except in conformity to the verdict, and that, although the error committed by the trial court may consist solely in its refusal to direct a verdict in favor of one party, yet after a verdict wrongly rendered in favor of the adverse party as the direct result of such erroneous refusal, the only method for correcting that error within the reach of the legislative or judicial departments of government is to order a new trial, and this because of the scope of the meaning of "trial by jury,” as secured by the Seventh Amendment to the Federal Constitution. That decision is not a final or binding authority on this court, for the reason that the Seventh Amendment does not control the action of the several States in abridging trial by jury within their own jurisdiction. It applies only to the courts and Congress of the United States. Pearson v. Yewdall, 95 U. S. 294, 296. Twining v. New Jersey, 211 U. S. 78, 98. The decision of Slocum v. New York Life Ins. Co. was rendered by a bare majority of a divided
The substance of our statute is that in civil cases where at the trial a request has been made that on all the evidence a finding or verdict be returned for either party, and such request has been denied and a finding or verdict has been rendered contrary thereto, and it shall be held by this court on exceptions that such request should have been granted, then (if all exceptions by the prevailing party shall be overruled) this court may by rescript direct the entry in the trial court of judgment for the party in whose behalf the request for the finding or verdict was made and erroneously refused. Before the statute of 1909 no such power resided in any of our courts. The practice is stated with clearness in Smith v. Lincoln, 198 Mass. 388, where it was held that after a verdict the only power of the trial judge was to set aside the verdict. The aim of the act is plain both from its provisions and its title, “To provide for expediting the final determination of causes.” However laudable the design for preventing delays in the administration of justice, it can be exercised only in accordance with the limitations imposed by the constitution. Article 15 of the Declaration of Rights of our Constitution provides: “In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practised, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners’ wages, the Legislature shall hereafter find it necessary to alter it.” This article has been discussed in numerous cases. It has been held that the Legislature may regulate the mode in which the right shall be exercised and that such regulation does not impair the substance of the right. This rule has been applied to statutes requiring as a condition precedent to the trial an affidavit of defense, Hunt v. Lucas, 99 Mass. 404; the filing of a claim for
On the other hand it has been said that trial by jury implies power of the judge to set aside a verdict and grant a new trial, which cannot be impaired by the Legislature. Opinion of the Justices, 207 Mass. 606. Capital Traction Co. v. Hof, 174 U. S. 1.
None of these cases are decisive of the point now presented. It becomes necessary to consider the nature of the trial by jury secured by our Constitution. There was great diversity in the form of jury trial existing in the several States at the time of the adoption of the Constitution of the United States. This is discussed with fecundity of illustration by Hamilton in No. 83 of the Federalist. Plurality of jury trials in Massachusetts in the same case there is referred to. Indeed, this variety of custom between the States has been said to have been the reason why no article securing trial by jury in civil cases was inserted in the Constitution by the convention which framed it. 5 Elliot’s Debates, 550.
The trial by jury preserved by our Constitution is the common law trial by jury in its essential characteristics as known and understood at the time the Constitution was adopted. Commonwealth v. Anthes, 5 Gray, 185, 229. It did not mean to preserve the minor details or unessential formalities of the trial by jury as it then existed either in England or here. That is plain both on reason and authority. Trial by jury in some form had existed since the early settlement of this State. Modifications of the system as practised in the mother country had grown up by custom and by legislation in the Colony and Province of Massachusetts
In view of all these considerations we are of opinion that St. 1909, c. 236, is not a violation of the right to a trial by jury secured by our Constitution. The falling into disuse of the two trials, which existed in many instances as of right in this Commonwealth at the adoption of the Constitution, within half a century thereafter, is evidence to this conclusion. This is confirmed by the early denial to the plaintiff of the right to become nonsuited after the evidence was in. It is supported by the common law practice to which reference has been made.
The essence of trial by jury is that controverted facts shall be decided by a jury. The constitutional right to trial .by jury is preserved in this regard when each party has one fair opportunity to present to a jury the evidence on which he claims to raise an issue of fact. If he fails utterly to improve that opportunity, there is no constitutional guaranty that he shall be given another chance. He has had his day in court. One feature of ideal administration of justice by the jury system is that correct rulings of law shall be made by the presiding judge. If the record is so framed and preserved that the same result may be reached at a later time as would have been attained by such correct rulings at the trial that end is attained by constitutional means. The function of the jury is to pass upon the facts involved in an action. The statute now under review does not infringe upon this
We are of opinion that the history of our practice as to trial by jury both before and since the adoption of the Constitution shows that the trial by jury of our Constitution has slightly more flexibility in its adaptation of details to the changing needs of society without in any degree impairing its essential character than is ruled by the majority of the court in Slocum v. New York Life Ins. Co. We are constrained not to adopt the reasoning or the conclusion of that opinion as correctly defining the scope of legislative power under our Constitution. St. 1909, c. 236, is not in violation of our Constitution. This result is in harmony with the decisions of many other courts.
The defendant’s exceptions are sustained, and in accordance with St. 1909, c. 236, judgment is to be entered in the Superior Court for the defendant and rescript is to go to that effect.
So ordered.
Anderson v. Fred Johnson Co. 116 Minn. 56. Muench v. Heinemann, 119 Wis. 441, 448. Hay v. Baraboo, 127 Wis. 1. Cornette v. Baltimore & Ohio Railroad, 115 C. C. A. 61. Bailey v. Willoughby, 33 Okla.194. McVeety v. Harvey Mercantile Co. 139 N. W. Rep. 586. Fishburne v. Robinson, 49 Wash. 271. Roe v. Standard Furniture Co. 41 Wash. 546. Cruikshank v. St. Paul Fire & Marine Ins. Co. 75 Minn. 266. Dalmas v. Kemble, 215 Penn. St. 410. American Car & Foundry Co. v. Alexandria Water Co. 221 Penn. St. 529. Manning v. Orleans, 42 Neb. 712. Smith v. Jones, 104 C. C. A. 329. Fries-Breslin Co. v. Bergen, 99 C. C. A. 384. Carstairs v. American Bonding & Trust Co. 54 C. C. A. 85. Richmire v. Andrews & Gale Elevator Co. 11 No. Dak. 453.