Among
other instructions (not excepted to by the defendant) the
court charged the jury as follows:
'It
has been suggested by the defendant that the mark upon the
forefinger of one of plaintiff's hands, of a burn upon
the inside of the finger and what the witnesses have called
the third joint, which I might call or you might call the
first joint, indicates, the defendant says, that the
plaintiff's intestate took hold of the wire, and he
asks you to say that that is negligence. Now I cannot say
that as matter of law. I leave that to you as a
circumstance to be considered. It might not be negligence
for one traveling upon the public street, or upon the
sidewalk or way used as a sidewalk, along the side of the
street, to take up a broken telephone wire or telegraph
wire. Whether that would apply to one who voluntarily
intentionally, took up an electric light wire, which he
knew to be an electric light wire and which he might have
reason to think was a charged wire, or bore a current of
high potentiality or force, might, you see, be an entirely
different thing. It would be competent for you to say that
one who should knowingly pick up a broken electric light
wire which he thought was charged with electricity and bore
a current of 2,000 or 2,300 volts of pressure, as it is
called--you might say that that was negligence.
'If
one voluntarily puts himself in a place of danger and injury
results therefrom, then you may find that that person is
lacking in due care, or is negligent. If a person, however
unconsciously finds himself in a place of danger and then
does something which may not be the safest thing to do, but
which seems to him, as a prudent man, the proper and prudent
thing to do at that time, you may not necessarily impute
negligence because one in danger fails to take the safe
course. That depends. It depends upon whether one voluntarily
went into a place of danger, or whether, being in a place of
danger, he acted as a reasonably prudent man would in trying
to escape the danger. I think I have said all I care to on
that branch of the question.'
To the
portions of the charge above quoted the defendant duly
excepted.
At the
request of defendant the judge also charged the jury as
follows:
'I
am asked by defendant to charge that if plaintiff's
intestate knew that the wire was broken and had reason to
believe that a person coming in contact with it was liable to
be injured, and if he voluntarily took hold of the wire or
touched it with his finger, the plaintiff cannot recover. I
charge you that.'
'I
an asked to charge that if the plaintiff's intestate knew
that the wire was broken and lodged in a tree from which the
end hung down toward the ground, and knew or ought to have
known that it was dangerous, and voluntarily placed himself
in such a position that the wire was liable to fall upon him
and if his death was caused by the wire falling on him, the
plaintiff cannot recover. I do so charge.'
The
defendant also excepted to the following remarks at the close
of the charge:
'Now
one thing more and I am done. You take this case at the
beginning of a day. No matter that you have been three days
in hearing it, you take it at the beginning of a day. It is
your duty to reach an agreement. I ask no man to violate his
settled convictions. Quite the contrary; but it is your duty
to have no positive settled convictions from which you may
not be dislodged or moved until you have heard all the
evidence, the arguments, the law as given to you by the
court, and until you have taken into consideration and given
due weight to the opinion of every one of your fellows. If
any man in the conference room shall say to you,
'Wasn't the plaintiff's intestate killed and
shouldn't they pay him?' spot that man as having
violated his oath. That in and of itself is no reason why you
should give a verdict one way or the other. If any man goes
into the jury room determined to stand by the impression or
even conviction that he now has and disregard the opinion of
his fellows, that man has failed to do his duty. Any man who
went into a meeting of a board of directors or trustees of a
corporation, or went into a legislative chamber--aye, or who
as a member of a court should refuse to give due weight to
the opinion of all his associates, hear their opinions, weigh
them, consider them, that man would have violated his duty.
So when you have had abundance of opportunity to talk this
case over quietly with yourselves, learned what each member
thinks about it, given due weight to the opinions of each of
your fellows, weighted the evidence, in other words weighed
the evidence in your consideration of it, then and not until
than will you be in a position to have a settled conviction;
then it is your duty to let nothing stand in the way of
reaching a decision. It would amount to an emasculation of
the administration of justice if you should fail to agree.
The law requires that there should be an end of litigation.
The cause will never be better tried than it has been here
and now before you. You have heard all the evidence, you have
had it enforced by arguments of counsel, you have been given
the principles of law. No one will ever be in a better
position than you are to decide it. Decide it. Let nothing
prevent you from deciding it. Doubtless you will reach a
conclusion before court adjourns. I expect you will. If,
however, at half-past 3 this afternoon you should still be in
conference, as I have no idea you will, you will instruct
your foreman what your verdict is, the verdict will be signed
by him, whether for plaintiff or defendant, and if for
plaintiff the amount will be written out, and if for
defendant he will sign the blank which is given for that
purpose, he will seal the verdict and report it in court
Monday morning.'
Upon
objection by the plaintiff to the foregoing portion of the
charge, the court said: 'You may strike that out,
gentlemen. It is of no importance when I expect you. I expect
you to reach a verdict when you can. Consider my remark that
I expect you to reach a verdict before 3 o'clock as
stricken out; disregard it. I am hopeful that you will,
however.'
Defendant's
Counsel: 'I also wish to except to the portion of the
charge where the jury were instructed with reference to the
time when a verdict should be brought in.'
The
Court: 'That has been withdrawn.'
Defendant's
Counsel. 'And to the statement which your honor made in
withdrawing it, that you hoped or expected that the jury
would report to-day.'
To the
rulings and refusals to rule as above set forth the defendant
duly excepted, and being aggrieved thereby, prays that this,
its bill of exceptions, may be allowed.
Wm.
H. Bent, for plaintiff.
F. W. & S.E. Qua, for defendant.
