231 Mass. 215 | Mass. | 1918
This is an action to recover damages for the death of the plaintiff’s intestate, who, while attempting to cross Millbury Street in Worcester at about eleven o’clock in the evening of February 27, 1917, was struck by an electric car of the defendant and received injuries which resulted in his death. Millbury Street extends in a northerly and southerly direction, and upon it.at the place of the accident the defendant maintained double tracks.
The case was submitted to the jury and a verdict was returned for the defendant.
The plaintiff excepted to the refusal of the presiding judge to give 'three requests for instructions except so far as they were covered by the charge; and also, to certain portions of the charge, and to the denial of a motion for a new trial.
The usual questions of the plaintiff’s due care and the defendant’s negligence were submitted to the jury upon the issue of liability.
The plaintiff was not entitled to have her first request given even if it embodied a correct statement of the law. The presiding judge already had stated to the jury that, “It is said, and it is true, that the car and the man had equal rights upon the street; neither had any right to the exclusion of the other.” There was no contention made by the defendant that the deceased failed to look as the car approached him or that he was obliged to look and listen constantly for the approach of the car to entitle the plaintiff to recover. The instruction given was ample and sufficient.
There was no error in the refusal of the judge to give the plaintiff’s third request. The relative rights of a pedestrian and of a street railway company operating its car upon the highway were sufficiently and accurately stated to the jury. It was the duty of the jury to consider the particular circumstances of the case as shown by the evidence to have existed at the time of the accident, and they were so instructed. L’Hote v. S. B. Dibble Lumber Co. 203 Mass. 294, 298.
The plaintiff excepted to three portions of the judge’s charge, contending that the parts so excepted to amounted to a charge upon the facts, because the test of the motorman’s care was incorrectly stated to the jury, and because the judge in his charge unduly emphasized the defendant’s contention and did not sufficiently refer to the plaintiff’s testimony and theory of the case. Upon a careful consideration of the portions of the charge excepted to, read in connection with the whole charge, we are of opinion that the criticisms made by the plaintiff are not well founded. It is the duty of the judge presiding over a jury trial, to state to the jury the principles of law applicable to the issues on trial, in order that they may arrive at an intelligent and just verdict. Maxwell v. Massachusetts Title Ins. Co. 206 Mass. 197, 200. Williams v. Winthrop, 213 Mass. 581.
Not only is it within the province of a presiding judge to state the testimony in his instructions (R. L. c. 173, § 80), but such statement is often helpful to the jury in applying the rules of law applicable to the issues presented; If a statement of the testimony is made by the judge, it should be fair and impartial; he should submit to the consideration of the jury all questions of fact material to the issues in dispute, without prejudice and without any attempt to influence their verdict. We find nothing in the
In no part of the instructions do we find language which, reasonably construed, amounts to a charge upon the facts. Plummer v. Boston Elevated Railway, 198 Mass. 499, 514, 515. The judge clearly and accurately and with apt illustrations pointed out to the jury the duty which the motorman, in the control and management of the car, owed to the deceased.
We are also of opinion that the portions of the charge excepted to were not misleading or bia'sed, and that these portions of the instructions gave no undue prominence to the defendant’s contention and made proper and adequate reference to the evidence presented by the plaintiff.
The judge’s attention was not directed at the time to any particular insufficiency or inaccuracy in the instructions, and no complaint was made that further or different instructions should have been given. Under such circumstances, that these exceptions may be sustained it is incumbent on the plaintiff to show that some injustice has been done. We find nothing to warrant such a conclusion. Rock v. Indian Orchard Mills, 142 Mass. 522, 529. Commonwealth v. Meserve, 154 Mass. 64, 75. Barker v. Loring, 177 Mass. 389, 391. Hamilton v. Boston Elevated Railway, 213 Mass. 420, 423.
The only other exception is to the denial of the plaintiff’s motion for a new trial. It is the contention of the plaintiff that the judge did not fully and accurately instruct the jury as to the effect of St. 1914, c. 553. Upon this question the instruction was as follows: "And the burden of showing a lack of due care on the part of Mr. Sawyer rests upon the defendant just as the burden of showing a lack of due care upon the part of the motorman rests upon the plaintiff.” The plaintiff made no request for a ruling based upon the statute and raised no question at the conclusion of the trial as to the accuracy of the instruction as given. If the plaintiff felt that the judge, in addition to the instruction above referred to, should have stated to the jury, in substance, that under the' statute the deceased was presumed to have been in the exercise of due care, it was her duty to make a request to that effect, or at the end of the charge call the judge’s attention to the omission.
As no error appears upon the record, the entry must be
Exceptions overruled.
