178 Mass. 368 | Mass. | 1901
This is an action of tort to recover for injuries alleged to have been occasioned to the plaintiff by reason of a defect in a highway which the defendant was bound to keep in repair. At the time of the accident the plaintiff was riding upon a bicycle and • was thrown from it by its contact
Pub. Sts. c. 153, § 8, provides that “ in all cases civil or criminal, ... a party aggrieved by an opinion, ruling, direction, or judgment of the court in matters of law may allege exceptions thereto, and shall not be required in a jury trial to allege the same in writing before the jury retires to consider the cause.” Subsequent sections of the same chapter provide for the taking, filing and allowance of exceptions, but nothing material to the point now under consideration; and the same remark may be made of the rules of the Superior Court. See Superior Court Rules, 47, 48.
In the trial of a case, especially before a jury, it frequently happens that a party will prefer that a ruling unfavorable to him, requested by the other party, should be given even although he believes it to be an inaccurate statement of the law. He may feel confident of a verdict in his favor, even if the ruling unfavorable to him be given, or he may prefer at any rate to take his chances of a verdict against him rather than to be delayed, in reaping the fruits of a verdict should it be in his favor, by exceptions taken by the other side to the refusal of the court
In actual practice it would be extremely inconvenient to make the allowance of an exception to the refusal to give a ruling requested depend in any degree upon the ability of the excepting party to prove that his adversary knew of the request and of the refusal to give it. It is only in comparatively rare cases that each party does not know what exceptions are taken in the case. Practically, counsel will find no difficulty in ascertaining before the retirement of the jury what exceptions have been taken and what is their general nature. For these and other obvious reasons, we cannot say that upon the facts stated in the record there was error of law in denying the plaintiff’s motion. At the same time we think that the general practice is founded in justice, and should be followed as the proper course.
The exception taken by the defendant was to the refusal of the court to rule that “ If the jury find that at the time of the accident the plaintiff was riding a bicycle in the dark, without a lamp, outside the travelled part of the highway, such facts will warrant the jury in determining that the plaintiff was not in the exercise of due care.” This request was presented at the conclusion of the charge. In the charge the court had in
No exception was taken to this part of the charge, the only exception being,, to the refusal to give the request above named. Since this case was tried it has been decided by this court that a bicycle is not a carriage within the meaning of the term in Pub. Sts. c. 52, § 1. Richardson v. Danvers, 176 Mass. 413. The plaintiff was travelling upon a machine for whose use the town was not obliged to keep the road in repair under the last clause of that section. It is plain that a road might be entirely unsuitable for the use of the plaintiff while so travelling, and yet be reasonably safe for him on foot or in a carriage of the kind included within the terms of the statute. Whether and to what extent the reasonable use of travellers for which a road is to be kept in repair may call for consideration by the public authorities of persons riding on bicycles it is not now necessary to decide nor how far the fact that a traveller is riding upon a bicycle at the time of his injury may furnish ground for defence' in an action of this kind. We have no doubt that the facts assumed in the defendant’s request would have warranted a finding by the jury that the plaintiff was not in the exercise of due care, and that as an abstract proposition the request was correct.
But the refusal to give it affords no ground for an exception. The request seems only to single out certain circumstances and asks the court to rule upon their effect on the question of the due care of the plaintiff, apart from other circumstances bearing upon the same issue. By our well settled practice the court, especially at that stage of the trial, was not bound to do this.
Exceptions overruled.