Tozier v. Haverhill & A. St. Ry. Co.

• Decision Date: 05 January 1905
• Citation: 187 Mass. 179,72 N.E. 953
• Parties: TOZIER v. Haverhill & A. St. Ry. Co.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 179

72 N.E. 953

TOZIER v. Haverhill & A. St. Ry. Co.

Supreme Judicial Court of Massachusetts, Essex.

January 5, 1905

COUNSEL

Timo.

W. & Danl. H. Coakley and Chas. C. Johnson, for plaintiffs.

Chas W. Bartlett and Elbridge R. Anderson, for defendant.

OPINION

KNOWLTON, C.J.

These are two actions brought by the plaintiffs, respectively--one to recover for injuries to the female plaintiff from the alleged negligence of the defendant in running a car in which she was a passenger; and the other to recover damages suffered by the male plaintiff, as her husband, resulting from her injury. It was conceded that she was in the exercise of due care, and the only exception now relied on in her case is to the refusal of the judge to give the jury this instruction, which the defendant requested: 'If the jury find that the motorman did not exercise the best judgment which the case discloses could have been exercised, he being called upon to act in a sudden emergency, his error would not be such negligence as would make the defendant liable.' If the request contained nothing but a statement of the familiar principle that, in determining whether one acts with reasonable care in a sudden emergency, the fact that he is obliged to act quickly and without an opportunity for deliberation is to be taken into account, and he is not to be deemed careless merely because he failed to do that which would have been best as shown by subsequent events, it properly might have been given. See Ingalls v. Bills, 9 Metc. 1, 43 Am. Dec. 346; Cody v. New York & New England Railroad Co., 151 Mass. 462, 468, 469, 24 N.E 402, 7 L. R. A. 843; Gannon v. New York, New Haven & Hartford Railroad Co., 173 Mass. 40, 52 N.E. 1075, 43 L R. A. 833. But it went further, and included the proposition that the motorman's error in not exercising the best judgment in a sudden emergency, if the jury found such an error, would not be actionable negligence, whatever the error might be in other particulars. The descriptive language in the request was applicable to an error which might have been very gross, and entirely inconsistent with the exercise of due care, as well as to an error which might have been excusable. We are of opinion that the instruction was properly refused, and that the exception in this case should be overruled.

The question in the other case grows out of the fact that at the time of the marriage of the two plaintiffs the female plaintiff had a former husband living, who had obtained from her a divorce for desertion, which had been made absolute less than two years before. It is declared by Pub. St. 1882 c. 145, § 4, which was in force at the time of the marriage, that 'all marriages contracted while either of the parties has a former wife or husband living, except as provided in chapter one hundred and forty-six, shall be void.' In Pub. St. 1882, c. 146, § 22 (Rev. Laws, c. 152, § 21), there is a provision in reference to divorced persons 'that the party against whom the divorce was granted shall not marry within two years from the...