186 Mass. 113 (1904), Jones v. Newton St. Ry. Co.

• Date: 25 May 1904
• Docket Number: .
• Citation: 186 Mass. 113,71 N.E. 114
• Parties: JONES v. NEWTON ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 113

186 Mass. 113 (1904)

71 N.E. 114

JONES

v.

NEWTON ST. RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

May 25, 1904

COUNSEL

[71 N.E. 114] Frank

W. Dana and W. C. Henderson, for plaintiff.

Geo. W. Morse and Walter M. Lindsay, for defendant.

OPINION

BRALEY, J.

The first question is whether any exception is properly before us. It appears that, after the instructions to the jury had been completed, the ruling requested and refused was presented for the first time to the presiding justice. Under the forty-eighth common-law rule of the superior court it is provided that: 'No exception shall be allowed by the presiding justice, unless the same be alleged and saved at the time when the opinion, ruling, direction or judgment excepted to is given. * * * All requests for instructions shall be made in writing before the closing arguments unless special leave is given to present further requests later.' The purpose of this rule is to insure the orderly conduct of trials, so that not only the court, but the parties, may definitely

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know what questions of law it is proposed to raise by requests for rulings, and it is of much practical importance that before the charge to the jury the different views of counsel shown by such requests shall be formally presented for consideration. [71 N.E. 115] While the flexibility of the rule permits them to be received in the discretion of the court at any stage of the trial before the jury retire to their verdict, no corresponding privilege is given by the clause which requires such an exception to be alleged and saved at the time the adverse ruling is given. Boutelle v. Dean, 148 Mass. 89, 18 N.E. 681. If in the trial it can be said to be a question of intention on the part of counsel whether or not this statutory right shall be exercised when occasion demands, yet in some definite manner that can be clearly understood the excepting party must make known his desire to take advantage of it when such a ruling is given. It often happens that rulings are asked with an implied understanding on the part of counsel and the court that, if refused, no formal action is required to save and complete this right; but no particular form of expression by which an exception is to be properly saved is prescribed or recognized in practice, and it is generally sufficient that at the time such purpose is plainly manifested, in whatever way; yet the exception does not...