213 Mass. 581 | Mass. | 1913
This is an action of tort to recover compensation for injuries received through an alleged defect in a public way upon which the plaintiff was a traveller.
1. There was evidence tending to show that the plaintiff was an experienced driver, and that as she turned her horse from one street to another she was looking at the street ahead, and saw nothing about the surface of the street to indicate a defect. It was for the jury to determine, upon this evidence and upon all the circumstances, as men of common experience, whether the plaintiff was in the exercise of due care. Thompson v. Bolton, 197 Mass. 311. Stoliker v. Boston, 204 Mass. 522, 534. Cutting v. Shelburne, 193 Mass. 1.
2. There was evidence tending to show that there were two depressions in the street described by some witnesses as holes, one of
3. At the close of the evidence, the defendant presented twenty-two requests for instructions, three of which were to the effect that the burden of proof was upon the plaintiff to establish that she was in the exercise of due care, and that the defendant had notice of and should have repaired the defect. At the close of the charge the counsel for the defendant asked that exceptions be noted to requests that had been denied, to which the presiding judge said, “Yes. They are principally that there is no evidence.” To this the defendant’s counsel replied, “Yes, sir,” and the judge said, “I will save your exception.” Although the charge made no specific reference to the burden of proof, it stated correctly and plainly that the jury, before they could return a verdict for the plaintiff, must find the various facts necessary to make out liability on the part of the defendant, and that the several issues in dispute must be established in favor of the plaintiff. It is apparent also from the charge that the jury had tried other tort cases before this one. Under these circumstances, if the defendant’s counsel had desired a specific instruction upon such an elementary principle as the burden of proof, he should have called it more pointedly than he did to the attention of the judge at the close of the charge. It is fair to infer that at some previous time full instructions had been given to the jury respecting the burden of proof, which it was not thought necessary to repeat in every case. Of course each party to a cause is entitled to have full and accurate instructions given touching every point involved. But the charge gives the impression that the nature of the burden of proof had been explained to the jury, and that they were acquainted with it. The colloquy at the close of the charge shows that the only matter in the mind of the judge as to which he had not instructed in accordance with the requests of the defendant was that going to the essence of the plaintiff’s case, and requests to that effect, of which there were a considerable number', were refused. Under these circumstances, if the defendant had desired a definite instruction upon the burden of proof, it was his duty to call it directly to the attention of the judge, and
4. A witness who lived near the place of accident, called by the plaintiff was permitted to testify, against the objection and exception of the defendant, that between the day of the accident and the preceding Sunday she had observed that "If an express wagon or grocery team would come that way they would always go down and jump up and go down again, and some came around with one wheel in the air.” The judge admitted this as tending to prove notice to the defendant. It is plain that such evidence is not admissible for the purpose of showing a defect in the way. This has been decided too many times to require more than a reference to one or two authorities. Collins v. Dorchester, 6 Cush. 396. Marvin v. New Bedford, 158 Mass. 464. The question of difficulty is, was it admissible on the issue whether the defendant “had or, by the exercise of proper care and diligence, might have had reasonable notice of the defect or want of repair” (R. L. c. 51, § 18) in the Way. Generally in this Commonwealth evidence of this character has been excluded. We are aware of no instance heretofore in which it has been admitted against objection. In Yore v. Newton, 194 Mass. 250, evidence of like character was held to have been excluded properly and it was said that it might have been done in the exercise of judicial discretion. But that case is no authority for the proposition that such evidence is competent or that it may be admitted under any circumstances.
Such evidence has been held in other cases to have been properly rejected, on the ground of raising collateral issues. Merrill v. Bradford, 110 Mass. 505. Blair v. Pelham, 118 Mass. 420. In Kidder v. Dunstable, 11 Gray, 342, it was said: “In an action for injury sustained in a highway, by reason of an alleged defect therein, evidence is not admissible, either that a person, not a party to the action, has received an injury at the same place, or has safely passed over it.” These cases treat the matter as a positive rule of law. Even if it were to be regarded as matter of judicial discretion, it would be unfortunate if the discretion were “not exercised in the same way under the same circumstances.” Sargent v. Merrimac, 196 Mass. 171, 175. No hardship will befall
Exceptions sustained.