Murray v. Liebmann

The sidewalk where the plaintiff was standing engaged in conversation with a friend when he was struck .and *9injured by the slightly overhanging spare tires carried on the defendant’s motor car in an upright position upon the running board, formed part of the highway, in the concurrent use of which each party owed to the other the duty of due care. And the plaintiff had the right to assume that drivers of vehicles using the part of the way wrought for carriage travel would exercise ordinary precaution to avoid contact with persons on the sidewalk standing within the cubbing. Hennessey v. Taylor, 189 Mass. 583, 584.

While the plaintiff’s nine requests which the presiding judge said he could not give in terms, were framed in part to meet varying aspects of his alleged rights as a pedestrian, it is sufficient to say that, when the instructions, to which no exceptions were taken, are read with the requests, no reversible error appears. Cutting v. Shelburne, 193 Mass. 1, 5. Commonwealth v. Henry, 229 Mass. 19.

The plaintiff also excepted to portions of the instructions relating to the cause of his physical condition, and to the measure of damages. The judge, however, in appropriate language told the jury that they were to determine whether the ills of which he complained were attributable to the accident, and if they so determined, he was entitled among other elements of damage to recover for loss of earning capacity resulting from his injuries. The instructions were correct. Lopes v. Connolly, 210 Mass. 487. It is true that, when referring to the right of recovery for loss of earning capacity, he also said, “that, while he himself did not believe that the law was correct, nevertheless it was the law;” a form of expression now urged as having been extremely prejudicial. But, if his own opinion may not have been apposite, it is plain that the jury could not have understood him as meaning that it was to be followed, for he further said, that “if they found that a man of the plaintiff’s capabilities'-would, except for this accident, have been worth more as a salesman of bonds than he was actually worth, they should allow him whatever loss he had proved in that regard.”

The jury having found for the defendant, the plaintiff filed a motion for a new trial. The record states that during the closing argument of the counsel for the plaintiff on the question of the defendant’s liability, “the presiding judge, intending to express his *10disagreement with counsel’s position as to a matter of law, shook jhis head. This expression of negation came at the time when the counsel had started to argue the question to the jury, and could have been understood by the jury as expressing the judge's dissent from the counsel’s position with regard to the due care of the plaintiff in that respect as á matter of fact.” If the counsel deemed that his rights to present to the jury his views had been infringed, there is nothing in the record to show that he did not have an opportunity to except. If under R. L. c. 173, § 106, exceptions may be alleged to rulings upon a motion for a new trial, they are confined to questions which arise for the first time at the hearing upon the motion. Commonwealth v. Morrison, 134 Mass. 189. Loveland v. Rand, 200 Mass. 142, 144. The plaintiff not having taken any exceptions at the trial and before the verdict, the question of the judge’s conduct, although assigned as one of the grounds for setting the verdict aside, is not open. Lopes v. Connolly, 210 Mass. 487, 496. And, the granting or denial of the motion having been a matter of discretion, the refusal to order a new trial cannot be reviewed. Welsh v. Milton Water Co. 200 Mass. 409.

Exceptions overruled.