Kelley v. City of Boston

| Mass. | Feb 24, 1909

Knowlton, C. J.

The first exception argued is that the judge charged the jury on the facts, in violation of R. L. c. 173, § 80. The statement of the principles of law applicable to the evidence was plainly correct. The statement of the evidence, in connection with the rules of law, was also in accordance with the practice of the courts and the purpose of the Legislature in framing the statute referred to. While a judge may not charge juries in .respect to matters of fact, he may state the testimony and the law. This exception must be overruled. Whitney v. Wellesley Boston Street Railway, 197 Mass. 495" court="Mass." date_filed="1908-02-28" href="https://app.midpage.ai/document/whitney-v-wellesley--boston-street-railway-co-6430149?utm_source=webapp" opinion_id="6430149">197 Mass. 495, and cases cited. Plummer Boston Elevated Railway, 198 Mass. 499" court="Mass." date_filed="1908-05-20" href="https://app.midpage.ai/document/plummer-v-boston-elevated-railway-co-6430261?utm_source=webapp" opinion_id="6430261">198 Mass. 499, 514.

The testimony relating to repairs made on August 11, 1906, was rightly admitted. There was testimony tending to show that the repairs then made were of the alleged defect referred to by the plaintiff as the cause of her injury. Although there was other testimony that the place of the accident had been repaired earlier, the evidence admitted without objection that the repairs then made were the first shown by the records to have been made at that place after the day of the accident, and the testimony of what the plaintiff said, speaking from her window while these repairs were being made, rendered the evidence competent.

The fact that the plaintiff did not take the stand to contradict important testimony from another witness, of what she had said, which tended to show that her claim was unfounded, was competent for the consideration of the jury. Although the sheriff had been ordered by the judge to retain her in custody to answer to a charge of perjury, there was nothing to interfere with the conduct of the trial, or to prevent her taking the witness stand to testify, either upon her own suggestion or that of her counsel.

Upon a motion for a new trial the plaintiff’s counsel made two requests for rulings, as follows: “ 1st. If the plaintiff, after testifying, was arrested in court during the trial of her case, and the jury noticed some of the acts connected with her arrest, and the jury were thereby made suspicious that the plaintiff was arrested for perjury, this is a legal ground for granting a new trial as a matter of law.

“2nd. The arrest of a plaintiff for perjury after giving her testimony, during a trial while the jury were in the court room, is an act tending to discredit the testimony of such a witness, and an act tending to prejudice the jury against any evidence given by said witness and is a legal ground for a new trial.”

There was nothing to show that the jury had any knowledge of the arrest referred to. Although they were in the court room at the time, it was not made within their hearing, and, at a recess taken soon afterwards, the presiding judge cautioned all persons present not to mention the arrest to any of the jurymen. The affidavit of the two jurymen went no further than to say that, from certain circumstances noticed by them, they were suspicious that the plaintiff was to be held for perjury.

The last request could not be given. It stated a proposition of law founded on a fact of which the jury might have had no knowledge.

We interpret the words in the first request, u this is a legal ground for granting a new trial as a matter of law,” to mean that the conditions referred to called for a new trial as a matter of law. This was plainly wrong. The mere fact that the jury noticed some acts that made them suspicious that there might have been an arrest would not make it the duty of the judge to set aside a verdict which appeared to be right, and not to have been induced by the acts referred to. Of course such acts, causing suspicion of such an arrest in the minds of a jury, properly might be made a ground for setting aside a verdict in the discretion of the judge, if he thought they had an influence upon the jury-

These requests for rulings were rightly refused.

Exceptions overruled.