213 Mass. 424 | Mass. | 1913
By the terms of the report “it is agreed by the parties that if the plaintiff’s exceptions were properly alleged, saved and filed, and should be sustained, or if, for any reason, the plaintiff is entitled to a new trial, then judgment is to be entered for” her “in the sum fixed by the jury.” The procedure at the trial was fluctuating and unusual. At the close of the plaintiff’s evidence the defendant requested a ruling that she was not entitled to recover. The judge upon hearing counsel announced that the request would be granted, and after saving exceptions counsel for the plaintiff left the court room. The defendant’s counsel, however, almost immediately asked to have the case submitted to the jury, and thereupon plaintiff’s counsel returned, and the taking of evidence was resumed. The defendant when the testimony was in excepted to the submission of the case to the jury, “on the ground of insufficiency of the evidence.” Apparently this ruling was refused, and the jury returned a verdict for the plaintiff. It may be inferred that this result was unanticipated, for on the return of the verdict a motion to set it aside upon the ground, that there was not sufficient evidence to warrant it, and that the case be reported to this court, was promptly filed by the defendant. The judge, without notice to the plaintiff’s counsel, and in his absence, at once set the verdict aside and directed a verdict for the defendant, which was returned. If seasonably excepted to the order would have been vacated, as the proceedings were not only irregular, but a nullity. R. L. c. 173, § 112. Peirson v. Boston Elevated, Railway, 191 Mass. 223, 229. Shanahan v. Boston & Northern Street Railway, 193 Mass. 412. The defendant urges that under Rule 45 of the Superior Court, that, "When further instructions are given in the absence of counsel after the jury have retired, the presiding justice may permit exceptions thereto at any time within twenty-four hours next following;” the plaintiff’s exceptions, which appear to be in proper form to raise the question, were filed too late. McCoy v. Jordan, 184 Mass. 575, 582. Goodrum v. Grimes, 185 Mass. 80. The position is well taken if the rule is applicable, as the exceptions were not filed until eleven days after counsel for the plaintiff had been notified of the order. If upon reading the verdict after it had been handed to him by the clerk and before ordering it affirmed and recorded, the judge had directed
We accordingly pass to the merits. Very plainly a verdict for the defendant could not have been ordered. The jury would have been warranted in finding that the plaintiff, upon becoming a passenger, informed the conductor that she wished and intended to alight at Walden Street, a regular stopping place. The car having stopped at the street, the conductor was required to use reasonable care to ascertain if she had alighted before it was again started. But the plaintiff testified, that the conductor stood on the front platform, as she moved to the rear door, passed to the platform, shut the door, and lifted her foot when she heard two bells, and the car suddenly moved forward, causing the accident. Although there was contradictory evidence, the credibility of the witnesses and the weight of their testimony was for the jury. It is sufficient, that they were at liberty to believe her statements, and, as the verdict shows, the negligence of the defendant and her own due care, had been proved to their satisfaction. Vine v. Berkshire Street Railway, 212 Mass. 580, and cases cited.
The plaintiff accordingly is to have judgment as stipulated.
So ordered.