McKean v. City of Salem

19 N.E. 21, 148 Mass. 109, 1888 Mass. LEXIS 30

• Court: Massachusetts Supreme Judicial Court
• Decided: November 28, 1888
• Status: Published

Opinion

Knowlton, J.

The defendant contends that the parts of the charge numbered 1 and 2 were in violation of the Pub. Sts. c. 153, § 5, which provides that “ the courts shall not charge juries with respect to matters of fact, but may state the testimony and the law.” It is often difficult to determine whether a judge’s reference in his charge to matters in evidence is objectionable under this statute, or is justifiable as a statement made for the purpose of aiding the jury in understanding the issues, and in applying to the facts the principles of law by which the case should be governed. In doubtful cases,, it is commonly a question of interpretation, and such it is in the case at bar. If these instructions were expressions of opinion in regard to the facts, they were erroneous. Commonwealth v. Barry, 9 Allen, 276. But, upon the whole bill of exceptions, it is not clear that they were intended by the judge, or understood by the jury, to go further than to tell them that there was evidence which was sufficient in law to warrant a finding for the plaintiff upon each of the propositions to which the instructions referred.

Upon the subject of care, the judge first stated what the question was, and that it was for the consideration of the jury. He then gave them a definition of due care, the correctness of which has not been questioned. Then followed the first of the instructions excepted to, which did not deal with particular evidence, and which we think may be interpreted, not as expressing an opinion that upon the testimony they ought to find in favor of the plaintiff, if they believed him, but that the testimony would “ justify,” or warrant, a finding that he was in the exercise of due care, if they were inclined to give it that effect. Commonwealth v. Clifford, 145 Mass. 97. Commonwealth v. Lawless, 103 Mass. 425.

The second of the instructions excepted to must also be considered in connection with other parts of the charge. The jury had previously been instructed as to the general duty of cities and towns to keep their highways reasonably safe and convenient for travel. Of slippery ice covering a sidewalk, the judge said, “ That is not a defect for which a city is responsible, but if the snow and ice remains there for such length of time as to form ridges or become rough, so that it presents an obstacle to travel, that is a defect for which a city may be liable.” He also afterward instructed them, at the request of the defendant, that it was “ immaterial that ice existed upon said street upon Friday or Saturday upon the place where the plaintiff fell, unless the jury are satisfied that such ice remained upon said sidewalk, was there- at the time of the accident, and rendered said street not reasonably safe and convenient for travellers.” In view of these instructions, we think the second part of the charge to which the defendant excepted "should not be interpreted as an expression of opinion upon the question whether the ice constituted a defect, but merely as an assurance that the evidence was sufficient in law to warrant this finding, if they should hold it to be a defect.

The third portion of the charge excepted to was merely a correct statement of the testimony on each side, upon a particular point, for the apparent purpose of presenting the issue upon that to the jury. The defendant’s request for an instructian, that “ there was no evidence that the ice existing upon said sidewalk upon Sunday, existed upon said sidewalk upon Friday,” was rightly refused. There was such evidence from two witnesses besides the plaintiff.

The fourth portion of the charge to which exception was taken was correct in law, and entirely unobjectionable. The other exceptions were not insisted upon.

Exceptions overruled.