Doyle v. Boston & A.R. Co.

• Decision Date: 06 October 1897
• Docket Number: 144.
• Citation: 82 F. 869
• Parties: DOYLE v. BOSTON & A.R. CO.
• Court: U.S. Court of Appeals — First Circuit

82 F. 869

DOYLE v. BOSTON & A.R. CO.

No. 144.

United States Court of Appeals, First Circuit.

October 6, 1897

Richard M. Saltonstall and E. Eugene Bolles, for plaintiff in error.

Samuel Hoar and George P. Furber, for defendant in error.

Before COLT, Circuit Judge, and WEBB and BROWN, District Judges.

COLT Circuit Judge.

This was an action by a passenger against a railroad corporation for personal injuries. The injuries were received at a station known as Riverside, on the evening of August 19 1893, while the plaintiff was in the act of boarding the defendant's train. The verdict was for the defendant, and the plaintiff tendered a bill of exceptions, and sued out this writ of error. Before coming to the consideration of the errors assigned, it may be observed that they are generally open to the criticism of not giving all that the court below said in its charge to the jury upon the particular point to which exception was taken. It is not a sufficient ground for error to take a single sentence or passage from the charge disconnected from the general context or from what precedes or follows. In determining whether the court below was right or wrong, we must examine the whole context, in order to find out what was in fact the ruling. The numerous errors assigned may be considered under several general heads:

1. The court refused to instruct the jury that the burden of proof was upon the defendant to show that the plaintiff was not in the exercise of due care at the time of receiving the injury complained of, and that the defendant must show this by a fair preponderance of the evidence, or the plaintiff is entitled to recover, so far as his own negligence is concerned; but the court did instruct the jury as follows:

'The plaintiff is to prove his entire case, as I shall submit it to you, by a preponderance of evidence. ' 'I do not withdraw what I said to you,-- that the burden of the proof of this entire case, as I submit it to you, is on the plaintiff.' As the case was submitted, if no question of care on the part of the plaintiff was left for the consideration of the jury, the plaintiff was not injured. The declaration contained two counts. In both counts the injury was alleged to have been caused by the defendant's carelessly starting the train while the plaintiff was about to board it. The second count further declared hat the defendant was negligent in not providing suitable platforms, lights, and other facilities for passengers alighting from and taking trains at this station. The evidence in the case was directly mainly to the point whether the defendant was negligent in starting the train. Upon the pleadings and proofs, we think the court below properly held that the question did not arise whether the plaintiff was in the exercise of ordinary care at the time of receiving the injury. The only real issue before the jury was the negligence of the defendant, and upon this issue the burden of proof was upon the plaintiff. The language of the court, therefore, was proper and unobjectionable. This instruction was favorable to the plaintiff, because it eliminated from the consideration of the jury one ground of defense, namely, that, assuming the defendant was negligent, the plaintiff's right of recovery could still be defeated by proving that he was not in the exercise of ordinary care at the time of receiving the injury. But in fact, as appears in the charge printed in the record, but not noticed in the bill of exceptions, the court did instruct the jury on the question of the plaintiff's negligence, and the rule of this court as to the burden of proof on this issue, as follows:

'I do not recollect any point at which the question of the plaintiff's care comes up, but, if there is any point where it comes up as a ground of defense, the burden is on the defense; and I instruct you now, as requested by the plaintiff that 'the burden of proof is not upon the plaintiff to show that he himself was in the exercise of due care at the time of receiving the injury, but, if the defendant claims the plaintiff's neglect contributed to the injury, the burden of proof is on the defendant to show that fact.''

If either party had cause to complain that the consideration of the plaintiff's negligence was taken from the jury, it was the defendant. In its answer such negligence was alleged as a ground of defense, and upon the whole evidence the defendant might well have insisted that the jury should pass upon it. If the verdict had been for the plaintiff, it would have been a serious question whether the defendant ought not to have a...