69 Me. 418 | Me. | 1879
When learned and diligent counsel, being unable to find in the instructions given by the presiding judge anything which, when specifically stated, they are prepared to affirm is erroneous, resort to general exceptions to the charge, or to all the instructions given upon certain branches of the case, or, as here, “to all the instructions, except what is included in brackets,” it may be regarded as reasonably certain that there is nothing of which they have any good cause to complain.
If the full court go far enough to ascertain that the proposition asserted in such exceptions (which is, in substance, that all the instructions thus referred to are erroneous) is not maintained, they ought to overrule the exceptions thus carelessly made up, without definite aim, in the forlorn hope that something or other may thereafterwards be discovered on which to base an argument for a new trial. That this court will so dispose of such bills of exceptions may be considered as settled by the cases of Harriman v. Banger, 67 Maine, 442, and McIntosh v. Bartlett, id. 130.
The part “ not included in brackets” runs thus: “The writ alleges the plaintiff had a ticket by which he was entitled to be carried on the excursion. If you believe the evidence, he had no such ticket. He had a ticket for a lady. It did not, on its face, entitle him to a passage. He had, if you believe the evidence, no right to a passage unless by virtue of a special contract.”
The statement of the case made in the exceptions by the plaintiff’s counsel is all that is needed to demonstrate that here was no error. The plaintiff’s only claim of right to a passage is based upon testimony from which he seeks to show that the defendants’ conductor tacitly agreed that he might ride on the ticket for a lady, to which his brother, as a member of the band accompanying the excursion, was entitled. The ticket was not a ticket for the excursion, as asserted in the writ, but a token of the perquisite bestowed on the members of the band for the use of their lady friends only.
There is no occasion to examine the exceptions to the charge any further. The testimony offered as to the instructions given to the plaintiff and his brother by their father was rightly excluded. It was, res inter alios, mere talk not communicated to the defendants, and not competent upon any of the rules of evidence.
Plaintiff’s counsel lays most stress in argument here upon his complaint that he was not permitted by the presiding judge to read to the jury extracts from the decisions of this court in certain cases which he had neither cited nor declared his intention to cite, until after the argument for the defendants was finished. The cases bore little, if any, resemblance to the one on trial, beyond the fact that they were suits against railroad companies for alleged torts to passengers on their trains. But, however pertinent they might be, it was a matter addressed to the discretion of the presiding judge to permit or prohibit such use of them as the counsel proposed to make, and the exercise of that discretion cannot properly be reviewed on exceptions.
The law of the case they are to receive from the judge, whose duty it is to respond to all questions of law raised in the progress of the cause, and to give the jury rules which are to govern them in the consideration of it; and no one who is aware of the liability of the human mind to be misled by vague general analogies and forms of expression applicable, perhaps, to one set of circumstances and totially inapplicable to another set having a general similarity but particular radical differences, will fail to see the necessity of lodging in the hands of him who is responsible for the correctness of the law, by which the jury are to be guided, the power to prevent wrong impressions from being conveyed to them under the guise of authoritative legal decisions. Such power the justice presiding at a trial before the jury unquestionably has, and his determination in the matter and manner of its employment is, and ought to be, final; for he has before him, in the appearance of the witnesses, jury and counsel, better means of judging as to its propriety than any printed report of the proceedings, however perfect, can furnish to us.
Exceptions overruled.
