Partelow v. Newton & Boston Street Railway Co.

81 N.E. 894, 196 Mass. 24, 1907 Mass. LEXIS 1039

• Court: Massachusetts Supreme Judicial Court
• Decided: June 18, 1907
• Status: Published

Opinion

Sheldon, J.

A verdict could not have been ordered for the defendant in these cases, and the defendant’s first request was refused rightly.

There was evidence on which the jury could find that the female plaintiff, hereinafter called the plaintiff, was in the exercise of due care. She was sitting in one of the seats designed for passengers, and there was nothing to indicate that she had reason to apprehend any special danger by reason of her position on the left hand end of the front seat. She testified that immediately before the accident, when she became apprehensive by reason of the speed of the car, she endeavored to save herself from possible injury by bracing herself in her seat and grasping the seat and the brass rod at the corner with her hand. This question was plainly for the jury. Indeed, the defendant has not argued to the contrary.

There was also evidence that the car was run at an excessive rate of speed over a somewhat sharp curve on a down grade, and that this caused an unusually severe jolt or lurch of the car, which threw the plaintiff off and caused the injury complained of. It is true that there was much evidence that the car was running only very slowly, and that there was no unusual or extraordinary lurch or jolt, and it may be that this was the weight of the evidence; but the question was for the jury. Spooner v. Old Colony Street Railway, 190 Mass. 132.

Nor ought the defendant’s seventh request to have been given. The criterion of the negligence of the defendant’s servants was not whether they ought to have realized before the accident occurred that the car was likely to lurch more violently and dangerously than was incident to an ordinary operation of cars upon curves in the track, but whether they were running the car at a rate of speed which under the circumstances and at that place involved unnecessary dangers. Moreover, there was evidence that a rule of the defendant limited the rate of speed at a place like the one in question to three miles an hour. If this was so, and if the jury found that this rule was violated, that would be a circumstance to be considered in passing upon the negligence of the defendant’s servants. Stevens v. Boston Elevated Railway, 184 Mass. 476. But this consideration was wholly omitted from the request.

The defendant rightly contends that it is a matter of common knowledge that from inequalities of surface and necessary curves, switches and guard rails, street cars in their ordinary and proper operation frequently and unavoidably lurch or jolt, and that such occurrences must be considered to be “fairly incidental to the mode of travel, and must be held to have been contemplated by the passenger.” Spooner v. Old Colony Street Railway, 190 Mass. 132,134, and cases there cited. The same rule has been applied to steam railroads. Foley v. Boston & Maine Railroad, 193 Mass. 332. Weinschenk v. New York, New Haven, & Hartford Railroad, 190 Mass. 250. Nor, as pointed out in the two cases last cited, is it enough to use strong or violent language in describing the jolt. To furnish ground for an action against the company, it must appear that the lurch or jolt was more than is ordinarily to be expected, and that it was due to a defect in the car or track, a negligent or dangerous rate of speed, or some other cause for which the defendant can be held responsible. Sanderson v. Bos ton Elevated Railway, 194 Mass. 337. Timms v. Old Colony Street Railway, 183 Mass. 193. Byron v. Lynn & Boston Railroad, 177 Mass. 303. McCauley v. Springfield Street Railway, 169 Mass. 301. But there was in this case evidence of an unusual and extraordinary jolt, and that this was due to the running of the car at an excessive and dangerous rate of speed. The case comes under the rule of Spooner v. Old Colony Street Railway, 190 Mass. 132.

The defendant’s exception to the comments of the judge on the witness Hart called by the defendant raises a more difficult question. The witness was the conductor of the car. He had answered the question as to how much of a swaying or lurch of the car there had been before the plaintiff fell, by saying, “ Well, I should say not more than any of these single truck cars would make.” No objection was made by the plaintiff to this answer; and it seems to us to have been a proper one. It was of course impossible to measure accurately the lurch of the car, or to describe it so as to enable the jury to determine its amount with exactness. It naturally would be described according to the standard of everyday experience. This is one of the many cases in which a witness may state the result of his observation, although it involves in some measure his opinion or judgment. Parker v. Boston & Hingham Steamboat Co. 109 Mass. 449, 451. Commonwealth v. Sturtivant, 117 Mass. 122,133. Commonwealth v. O’Brien, 134 Mass. 198,200. The presiding judge interfered and said: “ That does not answer the question. He comes here to say that. The other man is just the same way. He is not asked that question. ” The defendant excepted to this, and thereupon a colloquy ensued between the judge and the defendant’s counsel, in the course of which the former said of this witness and another witness of the defendant, “ Why should he say it ? Both of them have said it and you have not stopped them. . . . They shouldn’t do it. It is no use to have them answer that way. Whether they came here to say that, I don’t know whether that is so or not, but they shouldn’t say it.” It is claimed that this, said in the presence of the jury, might well be taken by them to indicate the judge’s opinion that the two witnesses referred to, both of whom had given testimony important to the defendant, were not honestly answering the questions asked them, but were attempting improperly to put into the case evidence favorable to the defendant, and had come to court for that purpose; that the jury well might regard ,it as an intimation that they were not credible witnesses. Our statute provides that “ the courts shall not charge juries with respect to matters of fact.” R. L. c. 173, § 80. It is settled that this forbids the judge to express in his charge to the jury any opinion as to the credibility of the witnesses who have testified before them. Commonwealth, v. Barry, 9 Allen, 276. Commonwealth v. Foran, 110 Mass. 179. The defendant’s contention is that an expression of such opinion stated to counsel in the course .of the trial, in the presence and hearing of the jury, is likely to be as prejudicial as if embodied in the charge, and is within the spirit of the prohibition. And it is true that new "trials not infrequently have been given in other States under similar circumstances. Wheeler v. Wallace, 53 Mich. 355. Cronkhite v. Dickerson, 51 Mich. 177. Lycan v. People, 107 Ill. 423. Hudson v. Hudson, 90 Ga. 581. State v. Allen, 100 Iowa, 7. State v. Stowell, 60 Iowa, 535. McMinn v. Whelan, 27 Cal. 300, 319. Other cases to substantially the same effect are referred to in Blaskfield on Instructions to Juries, §§ 49, 50;

There is undoubtedly force in the defendant’s contention; but we do not think that it can be accepted without qualification. Prior to the passage of Gen. Sts. c. 115, § 5, now embodied in R. L. e. 173, § 80, a judge might properly state his opinion as to the weight or effect of the whole or any part of the evidence, if only the comment was fairly made and the question was finally left to be determined by the jury. Porter v. Sullivan, 7 Gray, 441, 449. Mansfield v. Corbin, 4 Cush. 213. Whiton v. Colony Ins. Co. 2 Met. 1. Davis v. Jenney, 1 Met. 221. Curl v. Lowell, 19 Pick. 25. Commonwealth v. Child, 10 Pick. 253. The rule which prevailed before the passage of our present statute was well stated by Parker, C. J., in the case last cited: “ This would seem to raise the question, whether a judge may reason upon the facts, and if he intimates to the jury his own opinion of the evidence, whether this shall be cause for setting aside the verdict. We know of no rule requiring the judge to conceal his opinion. He is to comment upon the evidence. Is he to do it by merely stating that one witness says this thing and another witness says that ? Has he not power to say, this evidence is weak and that evidence is strong ? For myself, where the evidence on one side is nearly balanced by counter evidence, I endeavor to leave it to the jury to decide which scale preponderates; but if the evidence on one side is strong, compared to that on the other side, I think it my duty to make the jury comprehend that it is so.” And exactly this was done in Buckminster v. Perry, 4 Mass. 593.

In this state of the law our present statute was passed, providing that the judge should “ not charge juries with respect to matters of fact,” but might “ state the testimony and the law.” We think it manifest that the word “ charge ” here refers to the final summing up of the case by the judge to the jury, containing his-instructions to them, after the evidence has all been heard and the arguments of counsel concluded. This is the natural import of the word. And it is of some significance that in all the cases which have arisen heretofore under this statute the questions have been raised upon this final summing up by the judge to the jury. See Commonwealth v. Johnson, 188 Mass. 382, 389; Commonwealth v. Flynn, 165 Mass. 153,156; Commonwealth v. Walsh, 162 Mass. 242, 244; Cobb v. Covenant Mutual Benefit Association, 153 Mass. 176, 181; Commonwealth v. Leonard, 140 Mass. 473, 480; Sewall v. Robbins, 139 Mass. 164, 168; Commonwealth v. Brigham, 123 Mass. 248, 250; Commonwealth v. Foran, 110 Mass. 179; Commonwealth v. Barry, 9 Allen, 276; Harrington v. Harrington, 107 Mass. 329. The same construction has been given to this word in other States. In Millard v. Lyons, 25 Wis. 516, it was said that “the word ' charge ’ ... is not intended to include any and every question and answer passing between court and jury. It doubtless refers to the address made by the judge after the case has been closed, when he comments upon the testimony or instructs the jury on any matter of law arising upon it.” See to the same effect Harris v. McArthur, 90 Ga. 216; Moore v. Columbia & Greenville Railroad, 38 S.C. 1,31; Insurance Co. v. Trustees C. P. Church, 91 Tenn. 135; Dodd v. Moore, 91 Ind. 522 ; Lehman v. Hawks, 121 Ind. 541; Sharp v. Hoffman, 79 Cal. 404, 408. If the meaning of the word in our statute were otherwise doubtful, the permission given to the court to state the testimony and the law would be decisive; for practically such a statement could be made only in. the final summing up to the jury.

The Legislature has chosen to impose this restriction upon the judge in charging the jury. It has not carried the prohibition further. We cannot properly extend the rule so as to cover every remark which the judge may make to counsel during the trial, not addressed to the jury, though uttered in their presence and presumably heard by them. We have no right to restrict the ancient power of the court further than the Legislature has seen fit to restrict it, probably having in mind the rule which has been often declared in courts of appeal that it is not for every unguarded expression of a judge that a verdict should be set aside and a new trial ordered. Commonwealth v. Johnson, 137 Mass. 562. Moseley v. Washburn, 165 Mass. 417, 418, and cases there cited. Phillips v. Beene, 16 Ala. 720, 723. Birmingham Ins. Co. v. Pulver, 126 Ill. 329, 340. Chicago City Railway v. McLaughlin, 146 Ill. 353, 359, 360. State v. Gillett, 92 Iowa, 527. State v. Cleary, 97 Iowa, 413.

Although the statement of what had occurred which was made in the charge to the jury, doubtless from the memory of the presiding judge, was not strictly accurate in all respects, yet it left all the questions in dispute, including the credibility of the witnesses, to the jury, with an express caution against any prejudice in weighing the testimony of these particular witnesses. While we do not doubt that this court has power to sustain the exceptions of the aggrieved party in any case where the conduct of the presiding justice has indicated an actual attempt to prejudice the jury either as to the credibility of material witnesses or upon any disputed question of fact, we do not regard the case before us as presenting such a question. We see no sufficient reason for disturbing the verdict.

Exceptions overruled.