271 Mass. 274 | Mass. | 1930
The plaintiff was injured at or near the intersection of Hyde Park Avenue, in Boston, and Wyvern Street, an unaccepted way open to and used by the public, in a collision between the sedan which he was driving and an electric street car of the defendant. There was no error
The defendant does not press its exceptions to the rulings on evidence; but contends that its exceptions to the refusal of the trial judge to rule as requested and to portions of his charge should be sustained. We find no reversible error in the refusal to give the desired requests. The defendant was not entitled to have the judge charge with reference to selected facts, Ferris v. Ray Taxi Service Co. 259 Mass. 401;
The exceptions to the charge present more troublesome questions. The charge was very long, apparently without necessity in view of the simple issues of law and of fact to be discussed. It was not clear-cut; nor was it wholly consistent. A juror would be likely to err by remembering a partial statement and neglecting a somewhat distant qualification; or by fixing in mind one qualifying word and failing to note another which had a different connotation. The defendant contends that there was error in the instructions given with regard to the presumption of due care of the plaintiff created by G. L. c. 231, § 85; to the law respecting the right of way laid down by G. L. c. 89, § 8; and in omitting reference to the requirements of G. L. c. 90, § 14, that the operator of a motor vehicle on any highway approaching a crossing of ways shall slow down and keep to the right of the intersection of the centers of both ways before turning to the left. The bill of exceptions does not show that any request for instructions was made with regard to G. L. c. 90, § 14, or to G. L. c. 231, § 85, before the beginning of the charge. Accordingly the defendant would have had no good exception had nothing been said about them in the charge. Rule 44 of the Superior Court (1923). Nevertheless, it properly could except to language used in the charge, if it wished to challenge the rule there stated.
The defendant argues that the charge permitted the jurors to understand that the presumption of due care created by the statute, now G. L. c. 231, § 85, was, of itself, evidence of due care of the plaintiff which continued to remain in force throughout the trial and was to be weighed with the other evidence in deciding whether he exercised due care. It is settled law that this statutory presumption is not evidence; and that it ceases to be of force when
The charge, furthermore, was not clear in dealing with1" the matter of the rights of drivers approaching an intersection of ways at approximately the same instant. The judge was right in charging that the rectangular space included between the street lines, and not the point where the lines of motion of the vehicles cut one another within that space, was the “intersection” referred to by the statute, Fournier v. Zinn, 257 Mass. 575; and that, in decid
Exceptions sustained.