Donahoe v. Boston Elevated Ry. Co.
| Decision Date | 26 February 1913 |
| Citation | 214 Mass. 70,100 N.E. 1033 |
| Parties | DONAHOE v. BOSTON ELEVATED RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
D. H. Coakley and Coakley & Sherman, both of Boston, for plaintiff.
John E Hannigan, of Boston, for defendant.
These exceptions relate only to the charge. No requests for instructions were presented, but at the close of the charge objections were made.
It seems from the record that one of the chief controversies at the trial related to the question, whether the plaintiff was thrown from her seat and injured by a collision between the car of the defendant, on which she was a passenger, and a cart. A considerable amount of evidence was introduced upon this issue, a number of witnesses having testified (so far as the record shows all who were present except the plaintiff) that no one was thrown out of a seat by the jar of the collision. The charge made no reference to this subject, and at its close counsel for defendant called attention to this omission, stating that it was 'the main question.' The judge then, in three or four brief sentences, touched this branch of the case. It is not necessary to determine whether this was an adequate instruction upon so important an issue, because no exception was saved on this point. It is true that the attorney for the defendant noted exception to its insufficiency, but when the judge asked what he required as sufficient, the only reply related to another subject. The judge was well within his right in asking for a statement of the specific grounds of objection. When the answer omitted all reference to that point it must be assumed that the exception in this respect was waived and the additional charge regarded as adequate.
Exception also was taken to the inaccurate statement that the law imposed upon the motorman the highest degree of care consistent with running the car. This was modified by the judge when attention was directed to it, to the extent of saying in substance that the degree of care required was the utmost care consistent with running the business of the defendant. It well might have been amplified in accordance with what was said in Gardner v. Boston Elev. Ry., 204 Mass. 213 217, 90 N.E. 534, and the numerous cases there cited. Glennen v. Boston Elev. Ry., 207 Mass. 497, 93 N.E. 700, 32 L. R. A. (N. S.) 470. But it cannot be held incorrect or erroneous. Criticism is made further...
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