Milk v. Middlesex Railroad

Foster, J. It is much to be regretted that the bill of exceptions is drawn with such brevity and ambiguity that counsel do not agree, and this court finds it difficult to ascertain, what was the real aspect of the cause at the trial, with reference to which the learned judge gave the instructions reported and declined to grant the prayer of the plaintiff for further instructions. The refusal to give a specific additional ruling is the only exception presented to our consideration. The debate at the bar has been upon the true meaning and construction of the bill of exceptions. The defendants contend that the trial proceeded exclusively on the ground that the corporation was guilty of culpable negligence, by violating the St. of 1864, c. 229, § 36, which provides that “ no street railway car shall pass another car standing to receive or deliver passengers in a parallel track in the same street at a rate of speed faster than a walk.” If this be true, the plaintiff’s prayer for instructions was wholly inapplicable to the case. On the other hand, the plaintiff contends that the trial proceeded also on the ground that the defendant corporation was liable for negligence at common law, because its car was driven at an improper and excessive rate of speed and the plaintiff was thereby injured. If this-claim is right, it is conceded that the plaintiff was entitled to substantially the instructions which he asked for and, which, were refused. Justice to the party who prevailed and to the judge-who presided at the trial requires that the excepting party shall be held responsible for all imperfections in this bill of exceptions, and that no new trial should be granted unless he clearly shows that the instructions asked for were pertinent to the case. Bearing in mind this principle, the court are led to conclude that the plaintiff has no just cause of complaint. To the instructions actually given he takes no exception. These were, in substance, that, by the general rule of law, the corporation would be liable to any person who while using due care was injured by the improper and careless running of its cars. And this [170] statement is tantamount to the subsequent ruling specially requested by the plaintiff. But the presiding judge proceeded to say that this rule was inapplicable to the case on trial in which the plaintiff’s right to recover depended upon his proving a failure by the corporation to comply with the statute quoted above. If the plaintiff had intended to rest his case on any other ground, it was his duty after such a ruling to point out the fact distinctly to the judge, and to except to the statement as to the nature of the question upon trial. Inasmuch as he failed to do so, we do not think that his subsequent prayer can be interpreted as an application to the court to submit a different and additional issue to the jury. It rather seems to have been a request for further instructions relative to the same issue. In that aspect it was properly refused. We are not satisfied that the plaintiff undertook to maintain his action on any other ground than a violation of the duty imposed by the St. of 1864. Because it does not distinctly appear that the instructions asked for were appropriate and pertinent to the case, the Exceptions me overruled.