Kenny v. Town of Ipswich

• Decision Date: 03 April 1901
• Citation: 178 Mass. 368,59 N.E. 1007
• Parties: KENNY v. TOWN OF IPSWICH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

178 Mass. 368

59 N.E. 1007

KENNY v. TOWN OF IPSWICH.

Supreme Judicial Court of Massachusetts, Essex.

April 3, 1901

COUNSEL

Daniel N. Crowley, for plaintiff.

Geo. W Hayes and Alden P. White, for defendant.

OPINION

HAMMOND J.

This is an action of tort to recover for injuries alleged to have been occasioned to the plaintiff by reason of a defect in a highway which the defendant was bound to keep in repair. At the time of the accident the plaintiff was riding upon a bicycle, and was thrown from it by its contact with a gully in the way. At the close of the charge the defendant presented a certain request for a ruling, which request was refused by the court, and the defendant excepted. The plaintiff's counsel was present in court, but the request was not shown to him, and he was not aware that the instruction was asked, or that an exception was taken to the refusal of the court to give it. Afterwards the plaintiff moved, in writing, that the defendant's exceptions be 'disallowed and dismissed,' for reasons set forth in the motion. This motion was denied, and the plaintiff appealed. It does not appear, except as above stated, whether the motion was denied because the court did not find the facts as set forth in the motion, or because the court ruled that the facts set forth did not require, as matter of law that the exceptions should be disallowed; and therefore in considering the appeal we can only consider whether the facts set forth in the record, namely, that the request was not shown to the counsel for plaintiff, and it was not known by him that the instruction was asked and an exception was taken,--he all the time being present in court,--require that the exceptions should be 'disallowed or dismissed.'

Pub St. c. 153, § 8, provides that 'in all cases civil or criminal, * * * a party aggrieved by an opinion, ruling, direction, or judgment of the court in matters of law may allege exceptions thereto, and shall not be required in a jury trial to allege the same in writing before the jury retires to consider the cause.' Subsequent sections of the same chapter provide for the taking, filing, and allowance of exceptions, but nothing material to the point now under consideration; and the same remark may be made of the rules of the superior court. See Rules Super. Ct. 47 and 48. In the trial of a case, especially before a jury, it frequently happens that a party will prefer that a ruling unfavorable to him, requested by the other party, should be given, even although he believes it to be an inaccurate statement of the law. He may feel confident of a verdict in his favor even if the ruling unfavorable to him be given, or he may prefer, at any rate, to take his chances of a verdict against him, rather than to be delayed in reaping the fruits of a verdict, should it be in his favor, by exceptions taken by the other side to the refusal of the court to give the ruling requested; or more frequently he may be anxious to be heard upon any ruling requested, so as to be sure that, so far as in him lies, the court shall state the law fairly, so far as respects his interest. For these and other reasons it is reasonable and proper that each party to a case shall know what requests for rulings are made by the other party, and shall have an opportunity to be heard thereon if he so desires. But the practice has not always been strictly followed. Sometimes the request is of such a nature that the court is justified in assuming that...