James v. Boston Elevated Ry. Co.

• Decision Date: 29 January 1913
• Citation: 100 N.E. 545,213 Mass. 424
• Parties: JAMES v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 424

100 N.E. 545

JAMES v. BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 29, 1913

COUNSEL

E. W. Philbrick, of Boston, for plaintiff.

Fletcher Ranney, Wesley E. Monk, and Thomas Allen, Jr., all of Boston for defendant.

OPINION

BRALEY J.

By the term of the report 'it is agreed by the parties that if the plaintiff's exceptions were properly alleged, saved and filed, or if for any reason the plaintiff is entitled to a new trial, then judgment is to be entered for' her 'in the sum fixed by the jury.'The procedure at the trial was fluctuating and unusual.At the close of the plaintiff's evidence the defendant requested a ruling that she was not entitled to recover.The judge upon hearing counsel announced that the request would be granted, and after saving exceptions counsel for the plaintiff left the courtroom.The defendant's counsel, however, almost immediately asked to have the case submitted to the jury, and thereupon plaintiff's counsel returned, and the taking of evidence was resumed.The defendant when the testimony was in excepted to the submission of the case to the jury, 'on the ground of insufficiency of the evidence.'Apparently this ruling was refused, and the jury returned a verdict for the plaintiff.It may be inferred that this result was unanticipated, for on the coming in of the verdict a motion to set it aside upon the ground that there was not sufficient evidence to warrant it, and that the case be reported to this court, was promptly filed by the defendant.The court without notice to the plaintiff's counsel, and in his absence, at once set the verdict aside and directed a verdict for the defendant, which was returned.If seasonably excepted to the order would have been vacated, as the proceedings were not only irregular, but a nullity.R. L. c. 173, § 112;Pearson v. Boston Elevated Railway,191 Mass. 223, 229, 77 N.E. 769;Shanahan v. Boston & Northern St. Ry. Co.,193 Mass. 412, 79 N.E. 751.

The defendant urges that under the forty-eighth common-law rule of the superior court, that '* * * when further instructions are given in the absence of counsel after the jury have retired the presiding justice may permit exceptions thereto at any time within twenty-four hours next following * * *'the plaintiff's exceptions, which appear to be in proper form to raise the question, were filed too late.McCoy v. Jordan,184 Mass. 575, 582, 69 N.E. 358;Goodrum v. Grimes,185 Mass. 80, 69 N.E. 1053.The position is well taken if the rule is applicable, as the exceptions were not filed until 11 days after counsel for the plaintiff had been notified of the order.If upon reading the verdict after it had been handed to him by the clerk and before ordering it affirmed and recorded, the judge had directed a verdict for the defendant, his instructions would have been within the rule.McManus v. Thing,208 Mass. 55, 59, 94 N.E. 293.But when the...