Williams v. Inhabitants of Winthrop
| Decision Date | 26 February 1913 |
| Citation | 100 N.E. 1101,213 Mass. 581 |
| Parties | WILLIAMS v. INHABITANTS OF TOWN OF WINTHROP. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Elbridge R. Anderson and Joseph G. Bryer, both of Boston, for plaintiff.
Brandeis Dunbar & Nutter, of Boston (J. Butler Studley and Keith McLeod, both of Boston, of counsel), for defendant.
This is an action of tort to recover compensation for injuries received through ap alleged defect in a public way upon which the plaintiff was a traveler.
1. There was evidence tending to show that the plaintiff was an experienced driver, and that as she turned her horse from one street to another she was looking at the street ahead, and saw nothing about the surface of the street to indicate a defect. It was for the jury to determine, upon this evidence and upon all the circumstances, as men of common experience whether the plaintiff was in the exercise of due care. Thompson v. Bolton, 197 Mass. 311, 83 N.E. 1089; Stoliker v. Boston, 204 Mass. 522, 534, 90 N.E. 927; Cutting v. Shelburne, 193 Mass. 1, 78 N.E. 752.
2. There was evidence tending to show that there were two depressions in the street described by some witnesses as holes, one of which was six or more inches deep, with a mound between. It was for the jury to say whether this was a defect, taking into account the season of the year, precedent weather conditions, the amount of travel upon the street, and all the other attendant conditions.
3. At the close of the evidence, the defendant presented twenty-two requests for instructions, three of which were to the effect that the burden of proof was upon the plaintiff to establish that she was in the exercise of due care, and that the defendant had notice of and should have repaired the defect. At the close of the charge counsel for defendant requested that exceptions be noted to requests that had been denied, to which the court said, 'Yes, they are principally that there was no evidence.' To this the defendant's counsel replied 'Yes, sir,' and the court said, 'I will save your exception.' Although the charge made no specific reference to the burden of proof, it stated correctly and plainly that the jury must find the various facts necessary to make out liability on the part of the defendant, and that the several issues in dispute must be established in favor of the plaintiff. It is apparent also from the charge that the jury had tried other tort cases before this one. Under these circumstances, if the defendant's counsel had desired a specific instruction upon such an elementary principle as the burden of proof he should have called it more pointedly than he did to the attention of the judge at the close of the charge. It is fair to infer that at some previous time full instructions had been given to the jury respecting the burden of proof, which it was not thought necessary to repeat in every case. Of course each party to a cause is entitled to have full and accurate instructions gived touching every point involved. But the charge gives the impression that the nature of the burden of proof had been explained to the jury, and that they were acquainted with it. The colloquy at the close of the charge shows that the only matter in the mind of the court as to which he had not instructed in accordance with the requests of the defendant was that going to the essence of the plaintiff's case, and prayers to that effect, of which there were a considerable number, were refused. Under these circumstances, if the defendant had desired a definite instruction upon the burden of proof, it was his duty to call it directly to the attention of the judge, and not by assenting to his interrogatory, to the effect that the refusals related principally to the point that there was no evidence on which the plaintiff could go to the jury, lead the court to think that nothing else was relied on.
4. A witness who lived near the place of accident called by the plaintiff was...
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