182 Mass. 429 | Mass. | 1903
This is an action of tort to recover from the defendant company a sum of money paid by the plaintiff to one Atherton in settlement of a claim for damages resulting from an injury alleged to have been caused by a defect in or near a sidewalk in the town of Wakefield, which defect is alleged by the plaintiff to have been caused by the defendant. The payment was made without a trial, and without notice to this defendant that it might come in and defend the suit. At the trial of the present case the plaintiff contended that there
The defendant contended and argued to'the jury that the plaintiff failed to prove any of the allegations necessary to establish its case, and all the issues so raised were submitted to the jury in detail for their findings. In charging the jury the judge said, “ And because I regard this as one of the important questions, and am interested as to how you will treat it, I am going to ask you to answer this question: 1 Was this hole in the sidewalk reopened and refilled by the plumbers after the defendant’s servants had finished their work upon it?’ and that question you will answer ‘yes’ or ‘no.’” The jury returned a verdict for the defendant, but were unable to agree upon an answer to the question. The plaintiff made a motion for a new trial, and at the hearing upon it requested the judge to rule that “ The verdict for the defendant, under the circumstances of this
The failure of the jury to agree on this question was a matter proper for consideration by the judge, in the exercise of his discretion, in passing upon the mfotion for a new trial. But the ruling requested is not well founded in law. It does not appear that an answer to the question was necessary to the verdict. The subject to which the question related was only one of the defences relied on at the trial, and a verdict for the defendant might well have been rendered upon the failure of the plaintiff to sustain the burden of proof on different propositions, the establishment of which was necessary to make out its case. To say nothing of other issues, the jury may have found that there was no negligence on the part of the defendant in doing the work, or they may have found that the depression did not render the street so far unsafe or inconvenient as to constitute a defect for which the town was liable; or they may have found that the plaintiff in the original suit was not shown to be in the exercise of due care. The ruling was rightly refused.
Exceptions overruled.