226 Mass. 532 | Mass. | 1917
The exceptions now before us were taken at the new trial consequent upon the decision in Romana v. Boston Elevated Railway, 218 Mass. 76.
With these changes the case presented at the second trial was in substance this: The plaintiff received an electric shock from a heap of hay wire or wires of that nature while she was going toward the flats which lay back of the defendant’s car barn along a path just outside of the fence surrounding the defendant’s yard. This heap of wire lay in close proximity to or was attached to an iron pole or post belonging to the defendant; attached to this iron pole or post was a wire connected with the wires which carried the electric current used by the defendant in furnishing its cars with power. Through a defect in insulation the defendant’s electric current had been carried to this iron pole or post. In this way this iron pole or post had been charged with electricity and the electricity with which the pole or post had been charged had escaped into the hay wire; the electricity with which the hay wire had been thus charged had given the plaintiff the shock of which she complained in this action. At the trial no question was made: (1) as to the plaintiff having suffered an electric shock'; (2) as to the iron pole or post having been charged with the defendant’s electricity; and (3) as to the pole having been charged with electricity by reason of defective insulation in the defendant’s wires. The defendant’s main contention was that one of the hay wires had been attached to the pole or post in question by a third person and that the hay wires had become charged with the leaking electricity in this way. If these were the facts of the case the defendant was not liable. The plaintiff’s contention was that the electricity with which the pole had thus become charged found its way to the wire through water on the earth or through earth which was wet. And there was evidence that it might have been conveyed to the heap of wire in either of these two ways.
The exceptions taken by the defendant are very numerous and many of them have been waived. In discussing them we follow the defendant’s brief.
In the case at bar there is no question of res judicata. In the case at bar the plaintiff undertook to recover in the first count for ordinary negligence and in the second count for “wilful, wanton and reckless negligence.” A verdict for the defendant on the first count (of one and the same declaration) in no way precluded the plaintiff from making out a case of wilful, wanton and reckless negligence (as alleged in the second count) if in fact she could do so.
3. On the evidence in the case the presiding judge told the jury that to find for the plaintiff they must find in addition to the conceded facts of the case: (1) that before the accident one William Sullivan, who was a car shifter in the defendant’s car barn (here in question), had been told that the defendant’s iron post had become charged with electricity; (2) that he knew that people would be likely to be in the vicinity of the post; (3) that he knew that wire or similar objects had been dumped and were on the bank close to the post; (4) that he knew that people in the vicinity of the post would be likely to suffer grievous bodily injury by reason of the leaking electricity which had been stored in it; (5) that it was his duty to report that condition to his superior officer; (6) and finally that failing to report it to his superior officer the jury found that he had been guilty of reckless or wanton conduct or negligence. The evidence warranted findings in favor of the
In addition the jury answered in the affirmative the two questions put to them by the presiding judge: “1. On September 1, 1909, and prior to the accident to the plaintiff, was information conveyed by any person to Sullivan that the trolley pole at or near which the plaintiff was subsequently injured was charged with electricity, or that electricity was leaking or escaping therefrom? 2. If the jury believes that prior to the accident to the plaintiff on September 1, 1909, information was conveyed to the Sullivan referred to in the testimony of several of the plaintiff’s witnesses that the trolley pole was in a dangerous condition, did Sullivan, before the accident, believe that said pole was in a dangerous condition?” We are of opinion that these answers were warranted by the evidence.
Again it is urged that there is no evidence that Sullivan was in charge of the car barn in question. At the former trial of this case (218 Mass. 76) the plaintiff made out a case on the ground that he was. But in the case at bar the plaintiff did not rely upon that ground in making out her case. On the contrary the plaintiff relied upon the fact that it was the duty of Sullivan, in case a
4. Before the arguments to the jury began the counsel for -the defendant said to the presiding judge that it was embarrassing to take exceptions during the argument of counsel and further “If counsel undertakes to pass outside the limit set by the court, which is so very broad, I want a right to except to anything outside those boundaries. Does your Honor think I should wait until he gets through, or interrupt him? I don’t want to be interrupting, and have it said I am violating the rules of the court.” To this the presiding judge said: “ I suppose that there will have to be an interruption,” but that he would ask counsel to do the best he could to keep within the bounds, and the defendant’s counsel said: “I propose to have all the legal rights I have in this case. If you argue outside the rules which the judge has laid down, I shall feel at liberty to interrupt and take an exception.” During the course of the plaintiff’s argument to the jury the defendant’s counsel “not in the hearing of the jury, appealed twice to the court at the bench to stop” the argument which the plaintiff’s counsel then was making. At one of these times the presiding judge said in the presence of the jury that the argument was not what he should leave to the jury; to which the plaintiff’s counsel answered “May I just say this, judge, because I shan’t go an eighth of an inch off —,” and to this the judge said, “An exception is open, if you do.” On the conclusion of the arguments and before the judge made his charge to the jury the counsel for the defendant stated to the presiding judge that twice during the plaintiff’s argument he had notified the court that an argument was being made which was not within the lines on which the judge had told the counsel he should leave the case to the jury and the counsel then added that he then “begged an exception if it were not stopped, and the reason I did not interrupt was that I had before the argument said that I did not intend to, and I understood that the court had relieved me from the necessity of interrupting counsel’s argument.” After something more of the same kind had been said the presiding judge said that he should rule that the matters complained of had nothing to do with the case, to which the defendant’s counsel said: “That argument was made, and I haven’t had a fair trial in this court, and the
When the judge charged the jury he did not specifically refer to the plaintiff’s argument which was complainéd of by the defendant, but he did charge the jury on grounds which excluded the materiality of the argument as to the knowledge of Barnes and Lang. On the conclusion of the charge the defendant’s counsel said: “I should like to call attention to the objection I made to the plaintiff’s argument, and ask you to instruct the jury to disregard the portion of the argument to which I objected, or otherwise save my exception; that Lang might have known or Barnes might have known.” In what he said to the jury in his charge the judge had covered this point. The defendant was not entitled to have it .specifically called to the attention of the jury at this stage.
5. One of the witnesses who testified that he told Sullivan that the pole in question was charged with electricity was asked on cross-examination by the defendant’s counsel what Sullivan said to him at that time and he answered, “‘Get out of here; you are crazy,’ — that those are the words Sullivan said.” Thereupon the defendant’s counsel asked the witness, “Do you mean he did not believe you?”, to which the witness answered, “Yes.” The plaintiff’s counsel immediately said “I object. I ask to have that stricken out.” It was stricken out, and the defendant’s counsel took an exception. This exception must be overruled. The defendant was entitled to the evidence of the manner in which Sullivan accepted the information (which the witness said he gave him) and he got that when the witness testified that Sullivan said, “Get out of here; you are crazy.” He was not entitled to ask the witness what inference he (the witness) drew from that remark and there
6. We have examined all the cases relied on by the defendant and find nothing to add to what has been said as to those referred to above.
Exceptions overruled.