Bothwell v. Boston Elevated Ry. Co.
| Decision Date | 12 September 1913 |
| Citation | 215 Mass. 467,102 N.E. 665 |
| Parties | BOTHWELL v. BOSTON ELEVATED RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Coakley & Sherman, D. H. Coakley, R. H. Sherman and L. F. Monahan, all of Boston, for plaintiff.
Fletcher Ranney, Wesley E. Monk, and Thos. Allen, Jr., all of Boston for defendant.
The plaintiff seeks damages for the death of his intestate under St. 1907, c. 392, which authorizes recovery from a street railway company, whose servants in the conduct of its business negligently cause the death of a person, not a passenger or an employé, 'in the exercise of due care.' The uncontradicted evidence shows that the plaintiff's intestate at the time of the accident was nine years and nine months old. With other boys he was standing on a sidewalk looking at a Chinaman who was fixing something on the floor of a shop with a hatchet. The boys were 'teasing' or 'mocking' the Chinaman who, after a few minutes, 'got up with the hatchet in the air and walked toward the door.' Thereupon the boys, some of them in fright, scattered in different directions, the plaintiff's intestate running into the street in front of a car of the defendant and being fatally injured. The only fair inference from the evidence is that the plaintiff's intestate was engaged with the other boys in vexing the Chinaman. The testimony of one of his companions was that: While that of another was: 'We were mocking the Chinaman.' There was nothing to impair the force of this testimony. The contrary sentence in the statement of one of the plaintiff's witnesses at the inquest, offered solely to contradict his testimony at the trial in the superior court in a different respect, was not affirmative evidence of the fact. The point to be decided is, whether a finding was warranted that the plaintiff's intestate was 'in the exercise of due care' as required by the statute as a condition of recovery. It is not contended that there is any evidence of active exercise of care by the deceased. But the plaintiff's position is that he was relieved from such exercise of care by reason of the fear into which he was thrown by the conduct of the Chinaman.
Much may be excused in a person under the impulse of fear induced by circumstances over which he has no control and for which he is not responsible. Conduct which unhesitatingly would be pronounced wanting in care in a person under normal conditions may be found prudent in one overwhelmed by fright or confronted with the necessity of instant action in imminent peril. Where the fear has been caused by the defendant there is even more reason for judging with leniency the conduct of the person who suffers harm under such circumstances. But in order that this doctrine may be invoked, the injured person himself must be free from blameworthy participation in the event which has caused the fright. Wrongful conduct cannot be treated as an excuse for being in a position of danger. Black v. N. Y., N.H. & H. R. R. Co., 193 Mass. 448, 450, 79 N.E. 797, 7 L. R. A. (N. S.) 148, 8 Ann. Cas. 485; Rundgren v. B. & N. St. Ry., 201 Mass. 156, 158, 87 N.E. 189. The plaintiff's intestate was engaged with his companions in the wrongful project of 'teasing' and 'mocking' a Chinaman at work on his own premises. It might reasonably have been anticipated that in some way he would attempt to be rid of his tormentors. But whatever may be said of his conduct in trying to scare the boys away, or of relative rights between him and the boys, it is nevertheless true that the acts in which the plaintiff's intestate joined were wholly without justification and were wrong. It was not an unnatural result of these acts that he should be momentarily put in fear by the victim of his hectoring.
But whether there could be recovery if the intestate had survived and brought an action in his own name, it is plain that the present action cannot be maintained. If, while thus suffering from fright, fatal injuries are sustained by reason of impact with a street railway car, it cannot be said that the injured person was 'actively and actually' in the exercise of the diligence which has been held to be necessary in order that there may be recovery under this statute. It has been settled after elaborate consideration that the words 'due care' in this statute mean something more than a negative and passive freedom from fault and require reasonably intelligent and energetic attention to safety, and stand on the same basis as if they were used in an indictment under the same statute. They are not satisfied by 'invoking for the test of the defendant's liability under the statute its liability at common law in case of an action for compensation for an injury short of death.' Hudson v. Lynn & Boston R. R., 185 Mass. 510, 521, 71 N.E. 66, 71. It follows that the defendant's request should have been granted to the effect that a verdict be directed in its favor.
It is urged by the defendant that this is a proper case for this court to exercise the power vested in it by St. 1909, c. 236, and to direct by its rescript that judgment be entered for the defendant. The case appears to have been fully and fairly tried with an intelligent appreciation by counsel on each side of the issues involved and of the principles of law applicable to it, and its merits on the ample report of the evidence contained in the exceptions seem plain. Therefore it appears to be a case where the statute properly may be invoked. Archer v. Eldredge, 204 Mass. 323, 327, 90 N.E. 525; Grebenstein v. Stone & Webster Engineering Corp., 205 Mass. 431, 440, 91 N.E. 411; Newhall v. Enterprise Mining Co., 205 Mass. 585, 91 N.E. 905, 137 Am. St. Rep. 461; Burke v. Hodge, 211 Mass. 156, 163, 97 N.E. 920, Ann. Cas. 1913B, 381.
This course would be followed without discussion but for the decision of Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879, which holds that 'the right of trial by jury' secured by article 7 of the amendments to the Constitution of the United States does not permit the entry, after a verdict in favor of one party, of a judgment for the opposing party under circumstances like those in the case at bar. The question there arose in reviewing the action of the Circuit Court of Appeals which, under the conformity act (U. S. Rev. St. § 914 [U. S. Comp. St. 1901, p. 684]) and following a Pennsylvania statute, had entered judgment in favor of the party for whom the trial court erroneously refused to direct a verdict. The substance of that decision is that it is an unconstitutional exercise of the power of legislation to authorize the entry of judgment in a case where a trial by jury has been had, except in conformity to the verdict, and that, although the error committed by the trial court may consist solely in its refusal to direct a verdict in favor of one party, yet after a verdict wrongly rendered in favor of the adversary party as the direct result of such erroneous refusal, the only method for correcting that error within the reach of the legislative or judicial departments of government is to order a new trial, and this because of the scope of the meaning of 'trial by jury,' as secured by the seventh amendment to the federal Constitution. That decision is not a final or binding authority on this court for the reason that the seventh amendment does not control the action of the several states in abridging trial by jury within their own jurisdiction. It applies only to the courts and Congress of the United States. Pearson v. Yewdall, 95 U.S. 294, 296, 24 L.Ed. 436; Twining v. New Jersey, 211 U.S. 78, 98, 29 S.Ct. 14, 53 L.Ed. 97. The decision of Slocum v. N.Y. Life Ins. Co. was rendered by a bare majority of a divided court, four of the justices, among whom is a former chief justice of this court, joining in a dissenting opinion. But the deference due to a decision by the highest court of the nation when it challenges the constitutionality of our statute (as it does because our own Constitution secures the right of trial by jury) renders necessary thorough consideration, even though it has been acted upon heretofore in numerous instances without question of its validity.
The substance of our statute is that in civil cases where at the trial a request has been made that on all the evidence a finding or verdict be returned for either party, and such request has been denied and a finding or verdict has been rendered contrary thereto, and it shall be held by this court on exceptions that such request should have been granted then (if all exceptions by the prevailing party shall be overruled) this court may by rescript direct the entry in the trial court of judgment for the party in whose behalf the request for the finding or verdict was made and erroneously refused. Before the statute of 1909 no such power resided in any of our courts. The practice is stated with clearness in Smith v. Lincoln, 198 Mass. 388, 84 N.E. 498, where it was held that after a verdict the only power of the trial judge was to set aside the verdict. The aim of the act is plain both from its provisions and its title, 'To provide for expediting the final determination of causes.' However laudable the design for preventing delays in the administration of justice, it can be exercised only in accordance with the limitations imposed by the Constitution. Article 15 of the Bill of Rights of our Constitution provides: 'In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherwise used and practiced, the parties have a right to a trial by jury; and this method...
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