London v. Bay State Street Railway Co., 231 Mass. 480

London v. Bay State Street Railway Co.

231 Mass. 480 | Mass. | 1919

Loring, J.

In his closing argument the plaintiff’s counsel said, “If you gentlemen sitting here in this panel go to your jury room and come out and say that Morris London is to blame for his accident, — well, you make the law of Plymouth County, and you make it the law of Plymouth County that a man who is doing what Morris London was doing is not a prudent man. Was he not doing what you would do? Was he not doing what you would have done time and time again? I will pass the question. That’s all there is to it. . . . And on the evidence as it has been sub*484mitted and as I have tried to epitomize it here, on the question of speed, on the matter of speed, gong and whistle, is there any question in your mind at all but that this collision occurred without the slightest warning, and occurred when the car was going full tilt down that hill, or after it got down the hill? Is there any question about it in your mind at all? If that is the way the accident occurred, is there any question about the propriety of the conduct of the men who were running that car? Is there any question about it at all? Do you expect that when you go out and get on a Bay State car, that you are going to be treated that way? • That is the test.- You make the law for Plymouth County in this case. Do you think that that is the kind of treatment that you ought to get when you get on one of these Bay State cars on. the facts in the case? Do you expect an electric car, filled as this was, to be run down without any warning given to people ahead, or anything else, and to collide with a truck on the road? . . . Now, there is just one thing that I want to emphasize which I haven’t spoken to you at all about, and that is the difference between the duty which is owed by the Bay State Street Railway Company to Mr. London and the duty owed by the auto truck to Mr. London. They are entirely different, altogether different. The Bay State Street Railway Company has certain franchises from the State; it can take by eminent domain, your own property, and lay out its tracks through them; and, in consideration of those privileges and its professions, it is charged with certain duties, and one of them is to transport safely its passengers; and the duty that it owes is the highest degree of care consistent with the practical operation of its business.”

The defendant’s attorney during an intermission which occurred after this portion of the plaintiff’s closing argument had been made said to the presiding judge: “I desire to except to, and ask to have the jury instructed to disregard” the statements made in the three portions of the plaintiff’s argument set forth above. In his charge to the jury the presiding judge said: "During the argument of the counsel for the plaintiff he made certain statements to which the counsel for the defendant rose and objected. One was with reference to the right of the railway company to take your land by eminent domain; the other was with respect to your making law in these cases for Plymouth County. It is *485sufficient to say, perhaps, as to both of those that neither statement has any bearing on any issue that you are trying.”

The plaintiff has contended that the statements contained in these three parts of the plaintiff’s closing argument were Correct statements of law. We are of opinion that they were not. It is the duty of the jury under the rules of law laid down by the judge to decide on the evidence presented the questions of fact in issue between the parties. Putting it at the highest, it is their duty to apply the law to the evidence. In no sense can it be said that it is their duty “to make the law,” much less to “make the law” for one county. The law enforced by the courts of Massachusetts is the law of the Commonwealth applicable in each and every county alike. There is no law of one county as distinguished from the law of another county. It is not true that the reason why the defendant had to exercise “the highest degree of care consistent with the practical operation of its business” was because it had a right to “take by eminent domain,your own property, and lay out its tracks through them.” The defendant had to exercise the “highest degree of care consistent with the practical operation of its business” because it was a common carrier. The same duty rests on all common carriers. For example,.it rests on a common carrier who operates a stage coach or a “jitney” omnibus on a public highway. But the real grievance of the defendant is not that these statements of the plaintiff’s counsel were wrong. Its real grievance is that this argument was an appeal to the jury to act in violation of their duty as jurors. It is the duty of jurors to decide under the rules of law laid down by the judge what on the evidence presented to them are the true facts of the case on trial. It is their duty to decide the issue submitted to them impartially as between party and party. What they have to do is, laying aside their likes, their dislikes and their prejudices, laying aside what they may conceive to be for their personal advantage or disadvantage, to decide the issue on trial impartially between party and party. The argument of the plaintiff’s counsel in the case at bar was an appeal to the jury to take into consideration their interest as prospective passengers on the defendant railway and to decide the case so as to •secure for themselves in the future the treatment they wished as passengers on that railway. The latter part of this argument was a covert appeal to the jury to make this great and powerful corpora*486tian (so powerful that it had the right of eminent domain) feel the jury’s power in- the case at bar. Or at any rate the argument might well have been taken by the jury to mean that. This argument as a whole called for rigorous and emphatic action on the part of the judge. The burden was upon him to make certain that the jury would disregard this appeal to them to violate their duty. The action taken by the presiding judge fell, short of this. What the judge said was: “It is sufficient to say, perhaps, as to both of those that neither statement has any bearing on any issue that you are trying.” That is not an instruction that the jury should disregard this argument. Nor is it an instruction equally favorable to the defendant. In Commonwealth v. Poisson, 157 Mass. 510, and Bennett v. Susser, 191 Mass. 329, relied upon by the plaintiff’s counsel himself, it was laid down by this court that it is the duty of the presiding judge to instruct the jury to disregard an improper argument.

Thn plaintiff’s next contention is that the defendant has not saved his rights; that if the defendant’s counsel was not satisfied with the subsequent statement made by the judge it was his duty to tell the judge so and to except to his refusal to change what he then said. We are of opinion that this contention is without foundation. The defendant had in terms taken an exception to this argument of the plaintiff’s counsel. He also asked the judge at that time “to have the jury instructed to disregard the statement.” When he had taken an exception to the argument he had reserved his rights unless the judge cured the error which, had been committed. The error in the argument to which the defendant took an exception was not cured by what the judge said. His rights were saved by the exception taken.

The case will have to go back for a new trial, and we will briefly consider questions argued here which are likely to arise there.

There was no evidence of any violation of rules 19, 45, 158, 163 and 171, (printed on pages 481, 482,) and they should not have been admitted in evidence. Since there was no evidence of the violation of these rules, it was error for the judge to deal with them as he did in his charge by instructing the jury that, “If you find they did not violate any of the rules, of course the rules are of no consequence in this case. If you find that they did violate one or more of them and such disobedience contributed to the accident, *487that would be evidence tending to show negligence, for which the defendant is liable.”

The jury should have been instructed that, “Under the circumstances, and upon all the evidence in this case, the jury cannot properly draw any inference against this defendant from its failure to call as a witness Herbert A. Bumpus, the conductor of the car involved in the accident.” This case comes within Fitzpatrick v. Boston Elevated Railway, 223 Mass. 475, and not within Little v. Massachusetts Northeastern Street Railway, 229 Mass. 244.

There was evidence warranting a finding that the plaintiff was in the exercise of due care. Eldredge v. Boston Elevated Railway, 203 Mass. 582. Dalton v. Boston Elevated Railway, 217 Mass. 66. Walsh v. Boston Elevated Railway, 222 Mass. 275, where the cases are collected. It is not necessary to consider the effect of the answers given by the plaintiff as to the particular operations of his mind called forth by the cross-examination of the learned counsel for the defendant. It is not likely that this will be repeated at the coming trial. We do not intimate that the' result of these answers was to deprive the plaintiff of the right to go to the jury on the question of his due care.

Exceptions sustained.