Exceptions from supreme judicial court, Bristol county; Elisha B. Maynard, Judge.
Actions by Charles F. Schofield against Ephraim B. Wood and John T. May, per pro. ami, against the same defendant. These were actions of tort, which were tried together by agreement of the parties. There was a verdict for plaintiffs, and defendant excepts. Exceptions overruled.
Among the instructions requested by defendant were the following: “(9) The audience in the gallery had no right to assume that they could lean over or crush against each other, and thus against the guard rail; and the plaintiffs, in joining with the crowd in so doing, were not themselves in the exercise of due care, even though the jury should find that the rail in its construction was defective.”“(15) If the jury find that there was room for all the occupants of the gallery to be seated if they chose so to do, and the accident occurred because they did not keep their seats, then the defendant is not liable. The plaintiffs were not justified in standing up because the others in front of them stood up, and thus the view which they could have had from their seats was obstructed. If, by standing up and joining in the crowd in leaning over, the plaintiffs exposed themselves to danger, they were guilty of contributory negligence, and cannot recover.”“(18) If the jury find that the plaintiffs were pushed from their seats or places to the floor below by the force of those in the seats in back of them, then the defendant cannot be held responsible for the acts of such persons, and the plaintiffs cannot recover.”
The following is the charge of the court:
“Mr. Foreman and Gentlemen: The principles of law which govern this case are very simple, and the court can say little to help you, except to state the few simple principles which are to govern in the decision of the case. Perhaps there could be no case in which it is more necessary for you to exercise the common sense with which you are endowed, and what you have learned by experience of matters and things, than this case, because most of it, whether or not there is any blame to be attached to the defendant, or blame to be attached to the plaintiffs, or either to one or both, really is to be decided from what you know, from your experience, and from the common knowledge and the sense with which you are endowed, in testing the evidence which is brought before you, and, taking the two together, to get you to your judgment. Now, in this case you have been to the premises, and seen the location, and you have seen the place, and been told what it is used for, and, in addition to that, you have heard the testimony of different parties here. In addition to that testimony, you have had the testimony of certain experts,-two this morning, produced by the plaintiff, and the testimony of the man who had the contract to build it, and the man who did a part of the work in placing the gallery. Now, you are to test the experts just as you would test other witnesses, with, perhaps, this exception: Experts are simply to give you their opinion. They do not testify as to facts, but they are to help you. The theory of the law is that persons in different callings may have more knowledge from their experience than the jury have. If their opinion helps you any, you are to take it; but, if it does not seem to help you any, you will lay it aside. The weight of the testimony of an expert, your common judgment would show, depends not only upon what the testimony of other witnesses depends,-that is, upon their honesty, integrity, and general intelligence,-but it depends very largely upon what you think they know of the subject-matter. If a person came here in the line of an expert to tell you about something, and when he got through testifying you were satisfied that he did not know anything more about it than you, you would throw it aside; but if you can see that he knows more, and can give you information and throw light upon a particular subject-matter, it may be helpful; and the amount of help may depend, if you find the man is honest and intelligent, upon the amount of experience and skill which he has shown to you he has about the particular subject-matter. So you will take the experts as to the question of how the thing ought to be done. You have heard the testimony of the different experts, and you will give weight to it according as you shall say weight ought to be given; but if, on the other hand, you think it will not assist you at all, you will not give any weight to it.
“It has been said that we have to come here and try these cases in cold blood; that we cannot say, disregarding the evidence, that because a person is hurt he ought to have some remuneration, or because of one's negligence parties are hurt, but it is coming hard on him, and he ought not to suffer on that account; but we are to decide where the facts lie, and let it hit where it will, and either hardly or lightly. There are many accidents where no one is to blame, and in that case the burden must lie where it falls. There are other cases where the party hurt has been somewhat to blame; it may be entirely through his negligence, or it may be partly his negligence and partly the negligence of the person claimed of. Then he must bear it himself. It is only when he can show that he himself has been free from fault, and the whole trouble has come from the negligence of the party of whom he complains. So the burden is upon these plaintiffs to satisfy you by a fair preponderance of the evidence that they themselves were in the exercise of due care, and that no fault of theirs contributed to their injury, but that it came solely through the fault and negligence of the defendant. If he fails upon either one,-that is, if he fails to show you that he was in the exercise of due care,-the case falls. If you are satisfied that he was in the exercise of proper care, and if he fails to satisfy you of the negligence of the defendant, then his case falls. What is reasonable care? You have been told, I presume, many times. Whatever is reasonable care has to be found out by the circumstances; that is, the law does not say that this or that is care or carelessness, but you will apply the ever-varying rule, taking all the circumstances: Did the plaintiff exercise that care which you would expect a person of ordinary care and prudence to exercise under like circumstances? Did the defendant exercise that care and prudence which you would expect a man of ordinary prudence to exercise under like circumstances? That is the guide. That is the rule.
“Now, what was the duty of this defendant? I presume that you have not very much doubt as to just how the railing was built, and when you have determined that then the question comes, was that a proper, suitable railing for the place that it was in, and, taking into account all that the party who maintained the place had reason to contemplate, for all the force that he had reason to contemplate might be applied to it? Now, if the evidence satisfies you that it was, of course that ends the case. If, on the other hand, it satisfies you that it was not, then there is where the plaintiff claims that the defendant's liability comes. Now, to state that in clearer words, because always when we can find that the supreme court have given a definition or stated in terms, it is safe for us to adopt it. It is clearer than anything we can say ourselves. The court have said in a matter of this kind, ‘if the jury find that the use actually made of this railing was something which the defendant was bound to have contemplated,’ if the treatment of this rail at this time when the accident happened was a thing which the defendant was bound to have contemplated, then you may find, if it did not answer that purpose, if it was not a safe and proper railing for the purpose he was bound to contemplate it was to be used for, then it would not be a safe railing within the eye of the law. Now, what force did this defendant have reason to contemplate either at the time that he built the place, or caused it to be built, or up to the time at the time he was using it, what he had learned afterwards,-what amount of force had he reason, acting fairly as a man of...
