Murley v. Roche

Lord, J. As we construe this bill of exceptions, it raises but the single question, whether it was the duty of the presiding judge to rule, as matter of law, that it was contributory negligence in the plaintiff to sit where he was sitting upon the street. We cannot say, as matter of law, that it is negligence in a child under seven years of age to sit within the limits of a highway forty feet wide, about two or three feet from a picket fence bordering on the street, not far from his residence, with an el ler brother five or six feet from him, the character of the street, its conformation, the manner in which it was wrought, whether wiih or without sidewalks, being undisclosed and in dispute. Before passing to the question whether the particular instruction requested should have been given, and whether the instruction as given was erroneous, it is necessary to see what had already been given, and whether the presiding judge was called [333] apon to make any modification of the same, or to give contrary instructions. The bill of exceptions, after stating the conflicting claims of the parties as to the condition of the street and its entire structure, adds: “ The judge instructed the jury fully as to the rights of travellers with teams and persons on foot in the public highways; that persons on foot, in passing over or across the way travelled by teams, were bound to exercise all necessary care to avoid said teams; that, if they were negligent in that respect and were injured, they could not recover; that persons passing with teams over that part of the highway used for travel with teams should exercise all the care reasonably necessary not to interfere with or injure foot-passengers crossing over or across said part of the- highway; that if, owing to their negligence, the foot-passenger, being in exercise of due care, was injured, the party passing with the team would be liable; and that the plaintiff could not recover, unless, at the time of the injury, he was in that part of the highway where it was then proper for him to be, and was in the exercise of due care.” In view of the instructions thus already given, we think the request of the defendant can be construed only as a request to instruct the jury that the position of the child necessarily precluded his recovery; for if he meant to select one or two facts from a variety of facts given in evidence, all of which were in controversy, the judge rightfully declined to instruct upon one or two insulated facts which were not agreed to be proved, to the exclusion of a variety of facts which were also the subject of controversy, having already stated the true principles of law by which the jury were to be governed. The instruction actually given, if rigidly analyzed, might be subject to the criticism that it was stating propositions of law having relation to liability arising from wilful misconduct rather than to liability growing out of negligence or want of proper care. The language used in reference to the plaintiff that he had a right to be there, and in reference to the defendant’s servant that he would have no right to drive his horse on the sidewalk against him, would seem clearly language appropriate to an injury sustained by the wilful misfeasance of another, rather than to an injury unintentionally done through carelessness. But it was not so understood either by the court or the counsel, [334] but it was understood as applied to the facts of the case on trial, and its then condition; and of course is to be construed in connection with all the other instructions given in the case. In such connection it could not mean by the use of the words, “ he had a right to be there, that was a proper use of the sidewalk,” that, under the facts of this case, as matter of law, it was not negligence to be there, but simply that the jury might find under the circumstances of the case that it was not negligence in the plaintiff to be thus there. And so the remaining sentence of the instruction, “ and the defendant’s servant would have no right to drive his horsejon the sidewalk against him,” is not to be construed as an instruction that the collision of the defendant’s horse with the plaintiff was, as matter of law, a wrongful act for which the defendant was liable, but only that it was competent for the jury to find that, under the circumstances of the case, the injury to the plaintiff resulted from the negligence of the defendant’s servant, without contributory negligence on the part of the plaintiff. Any other construction' of the ruling is so entirely inconsistent with the general course of instructions given at the trial, and the principles by which the jury were to be guided in arriving at a result, that we could not adopt it, unless we were compelled to do so by reason of the use of clear and unequivocal words. Such words are not used; but, as applicable to the subject matter and to the actual condition of the case, when given, and in connection with other instructions given, the interpretation which we give to the words is the more natural one, and affords no ground for exception. Exceptions overruled.