257 Mass. 212 | Mass. | 1926
No error appears in the rulings and orders made by the judgé in the course of the introduction of evidence. The rulings objected to related to the repetition of questions in cross-examination; the limit of cross-examination; the determination whether questions sought immaterial testimony, or argumentative discussion of testimony already given, or answers tending to contradict testimony given elsewhere, or whether the form of the question was fair to the witness. All these were matters of discretion for the judge in the conduct of the trial. No valid exception lies to his rulings thereon. Demerritt v. Randall, 116 Mass. 331. Miller v. Smith, 112 Mass. 470, 476. Smith v. Boston Elevated Railway, 208 Mass. 186.
The material question raised by the bill of exceptions is, whether the judge was in error in his interpretation of the words “the safety of the public” in G. L. c. 90, § 17.
The defendant was tried upon a complaint which charged that he operated an automobile upon Main Street in Lee “at a rate of speed greater than was reasonable and proper, having regard to traffic, the use of the way and the safety of the public.” The evidence disclosed that no accident took place and no person or property was injured. The jury could find that upon a straight road with an up grade increasing in degree in the direction in which he was going, in a business portion of the town, the defendant drove his car at a rate of speed estimated by himself at from twenty-five to thirty miles, and by other witnesses at thirty and thirty-five miles, per hour. There was no pedestrian in the road. There were people on the sidewalks on both sides of the road; and one witness testified that he had just crossed the road diagonally, and had reached a point at the sidewalk from which he first saw the defendant approaching some two
The judge “instructed the jury in substance that the Commonwealth had not made out a prima facie case within the meaning of” G. L. c. 90, § 17, and then went on:
“So that we come back to the other part of the statute, to determine upon all the evidence and upon all the fair inferences of fact to be drawn from the evidence whether or not the speed of the operator was greater than was reasonable and proper, having regard to the three specifications, as it were, laid down in the law. In other words, the statute furnished you with three test questions, or three tests to determine the answer to the question: Was the motor vehicle run at a rate greater than is reasonable and proper?
“Now what are those three .tests? First, the traffic. The words 'reasonable and proper’ are to be read in regard to traffic and the use of the way and the safety of the public. Now with reference to traffic, you are to take into consideration, from all the evidence, what was the traffic in the main street of Lee at that time, about seven o’clock on the evening of June 5. What motor vehicles or other vehicles were in that street, stationary or in motion? What pedestrians were in that street at that time, standing still or in motion?
“Now the next, the use of the way. In that regard you are to take into consideration what this street was, whether it was a main thoroughfare, whether it was a much used street in the town of Lee or a little used street in the town of Lee. You can take into consideration the presence of street railway tracks as they are indicated and shown upon the plan. You can take into consideration any other facts relating to the size of the community or the extent to which this thoroughfare was used or may be used, from any evidence in this case.
“Now thirdly, with regard to the safety of the public. Now what does that mean? What does the word ‘public’ mean? Generally speaking, it means the people in general. Generally speaking, that’s what it means. Not the people in this particular locality at this particular time, but the people of the entire community, and perhaps it may be said, using the first and general use of the term, the public outside and beyond the immediate community of the town of Lee. But for the purposes of this case, it is perhaps advisable, it is perhaps the law to read the word ‘public’ in the light of the entire community of Lee, and that is a fair definition of the word ‘public’ in that sense.
“Now, then, as applied to the term ‘public safety,’ I say to you that the fair meaning of that is the definition usually given of the condition of being safe, the condition of freedom from danger or hazard or harm, the condition of freedom from danger or hazard or harm on the part of the entire community of Lee.
“Now test the evidence from those three angles, the standpoint of the traffic in the way at the time; the standpoint "of the use of the way at the time, and the standpoint of the safety of the public at any time within the meaning of those words as I have explained them.
“Now if you find that on all the facts and on all the fair inferences of fact to be drawn from the testimony that this method of operation at this .time and place was reasonable
The defendant contends that this charge permitted the jurors to find him guilty if the rate of speed at which he was moving, although, under the conditions existing at the time, it involved no risk to the safety of the public there present, might, under other circumstances and at other times, put the safety of another public in danger. He contends that he is prejudiced by the scope given to the word “public” and by the distinction drawn between conditions of “traffic” and of “the use of the way” at the moment of the alleged offence and “of the safety of the public” at any time. His contention is, that the only public concerned is that portion of the public within possibility of immediate injury, and the only risks to safety to be considered are the specific risks of imminent injury to which he exposed it in the conditions then and there existing.
We do not so interpret the charge. Its language, as intended by the judge and as understood by the jury, in our opinion, instructed the jurors that in order to find the defendant guilty they must be satisfied that, at the moment complained of, his speed, then, was not reasonable and proper, in view (1) of the traffic then upon the road; (2) of the use — potential as well as actual — then being made of the road by all entitled to use it; and (3) of the broad considerations of safety to the public, applicable at all times to the use of highways, which, then and there, should govern the actions of any one operating an automobile upon them. Such an instruction states the law accurately. It gives full effect to the three elements posited by the statute; and it does not authorize a verdict of guilty based upon elements not present and not involved in the actual occurrence.
Exceptions overruled.