280 Mass. 526 | Mass. | 1932
This action of tort to recover compensation for personal injuries received by the plaintiff when she fell on the sidewalk in front of the premises of the defendants in the city of Boston by reason of an alleged unnatural accumulation of ice thereon was tried by a judge and a jury with an action against the city to recover compensation for the same injuries. At the close of the plaintiff’s case a verdict was ordered for the city. The trial proceeded against these defendants and the jury returned a verdict for the plaintiff. The case comes before us on exceptions to a part of the judge’s charge.
The evidence introduced by the plaintiff tended to show that while walking upon the sidewalk in front of the defendants’ building she slipped and fell upon a ridge of ice and was
The part of the judge’s charge to which objection was made was as follows: “Now in connection with the case of the city, there is something to which I should, I think, call your attention. There was, of course, as you know, a case against the city. It may or may not have some bearing as you decide on the weight of the testimony of the police officers and the witnesses for the defendants here, to tell you something of the liability which would be the city’s, were the city’s case prosecuted in this court as was the case of the defendants. There is a distinction there which may or may not, as you decide, affect the weight of the testimony to" be given to the witnesses offered by the defendants, who included two policemen. The city is liable in an accident of this kind involving snow and ice only where there is such a defect in the way, in this case the sidewalk, which, taken in connection'with the snow and ice, would subject the passerby to injury, either by reason wholly of the defect or by reason of the defect taken in connection with the snow and ice which was associated with the defect, and in this case, I think it has appeared in some of the testimony that the policemen examined the sidewalk. Now that may have some bearing on the examination made by the policemen, whether they were looking for defects in the sidewalk, whether they were look
The sole contention of the defendants is that the part of the charge objected to violated G. L. (Ter. Ed.) c. 231, § 81, which is as follows: “The courts shall not charge juries with respect to matters of fact, but they may state the testimony and the law.”
This statute has been interpreted as restraining judges from stating “their own judgment or conclusion upon matters of fact” (Commonwealth v. Barry, 9 Allen, 276, 279), and as including within this prohibition expressions of opinion as to the credibility of particular witnesses (Commonwealth v. Barry, 9 Allen, 276, 278, Commonwealth v. Larrabee, 99 Mass. 413, Commonwealth v. Foran, 110 Mass. 179, Hayes v. Moulton, 194 Mass. 157, 165), and as to the weight to be given to evidence when the law “does not define the degree of weight to be attached to it.” Commonwealth v. Leonard, 140 Mass. 473, 481. The statute, however, provides expressly that judges “may state the testimony,” and does not restrain them from furnishing to juries “guides or illustrations ... as to weighing the evidence of witnesses, and as to tests by which their reliability or credibility may be determined.” Plummer v. Boston Elevated Railway, 198 Mass. 499, 515, and cases cited.
We cannot say that the suggested guide could not properly have been used by the; jury. See Commonwealth v. Keenan, 148 Mass. 470, 472-473. The purpose of the police officers’ examination of the sidewalk might reasonably be thought to have a bearing on the weight of their testimony. What a person sees may to some extent depend upon what he looks for. However, no principle of law, and no municipal ordinance or rule of the police department in evidence (see Brodsky v. Fine, 263 Mass. 51), required police officers to examine sidewalks with special reference to defects for which the city would be liable, as distinguished from other conditions dangerous to travellers, and such a practice cannot be said to be matter of common knowledge. But there was some ground in the evidence, though slight, for the inference that these police officers had a special interest in examining the sidewalk with reference to the city’s liability for the accident. And this interest might be thought to lia-ye affected the accuracy of their observation. In this aspect of the evidence the statements in the charge in regard to the liability of the city for defects in the sidewalk were pertinent.
¡ Exceptions overruled.