London v. Bay State St. Ry. Co.
Decision Date | 02 January 1919 |
Citation | 121 N.E. 394,231 Mass. 480 |
Parties | LONDON v. BAY STATE ST. RY. CO. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Plymouth County; Jas. H. Sisk, Judge.
Action by Morris London against the Bay State Street Railway Company. Verdict for plaintiff, and defendant excepts. Exceptions sustained.
Whipple, Sears & Ogden and Hoy & O'Connell, all of Boston (Wm. R. Sears and Jas. M. Hoy, both of Boston, of counsel), for plaintiff.
Asa P. French and Jonathan W. French, both of Boston, for defendant.
In his closing argument the plaintiff's counsel said:
The defendant's attorney during an intermission which occurred after this portion of the plaintiff's closing argument had been made said to the presiding judge:
‘I desire to except to, and ask to have the jury instructed to disregard’ the statements made in the three portions of the plaintiff's argument set forth above.
In his charge to the jury the presiding judge said:
The plaintiff has contended that the statements contained in these three parts of the plaintiff's closing argument were correct statements of law. We are of opinion that they were not. It is the duty of the jury under the rules of law laid down by the judge to decide on the evidence presented the questions of fact in issue between the parties. Putting it at the highest, it is their duty to apply the law to the evidence. In no sense can it be said that it is their duty ‘to make the law’ much less to ‘make the law’ for one county. The law enforced by the courts of Massachusetts is the law of the Commonwealth applicable in each and every county alike. There is no law of one county as distinguished from the law of another county. It is not true that the reason why the defendant had to exercise ‘the highest degree of care consistent with the practical operation of its business' was because it had a right to ‘take by eminent domain, your own property and lay its tracks through them.’ The defendant had to exercise the ‘highest degree of care consistent with the practical operation of its business' because it was a common carrier. The same duty rests on all common carriers. For example it rests on a common carrier who operates a stage coach or a jitney omnibus on a public highway. But the real grievance of the defendant is not that these statements of the plaintiff's counsel were wrong. Its real grievance is that this argument was an appeal to the jury to act in violation of their duty as jurors. It is the duty of jurors to decide under the rules of law laid down by the judge what on the evidence presented to them are the true facts of the case on trial. It is their duty to decide the issue submitted to them impartially as between party and party. What they have to do is laying aside their likes, their dislikes and their prejudices, laying aside what they may conceive to be for their personal advantage or disadvantage, to decide the issue on trial impartially between party and party. The argument of the plaintiff's counsel in the case at bar was an appeal to the jury to take into consideration their interest as prospective passengers on the defendant railway and to decide the case so to secure for themselves in the future the treatment they wished as passengers on that railway. The latter part of this argument was a covert appeal to the jury to make this great and powerful corporation(so powerful that it had the right of eminent domain) feel the jury's power in the case at bar. Or at any rate the argument might well have been taken by the jury to mean that. The argument as a...
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...to the denial. In these circumstances, failure to renew the exceptions at the close of the charge was not fatal. London v. Bay State St. Ry., 231 Mass. 480, 121 N.E. 394; Doherty v. Levine, 278 Mass. 418, 419-420, 180 N.E. 168; Heina v. Broadway Fruit Mkt., Inc., 304 Mass. 608, 610-611, 24 ......
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...on his part "to make certain that the jury would disregard (the) appeal to them to violate their duty." London v. Bay State St. Ry., 231 Mass. 480, 486, 121 N.E. 394, 395-396 (1919). The judge's exercise of his discretion is thus supported by sufficient indicia in the record that the miscon......
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