WHITCOMB v. NEW YORK, N. H. & H. R. John L. Hall, of Boston, for defendant.

Exceptions from Superior Court, Suffolk especially a matter for the presiding justice County; Marcus Morton, Judge.

able or were exaggerated with a view to in- |es incurred for services of attendants and flating the damages.

[3] There was testimony brought out on the cross-examinatior of the plaintiff's physician tending to show that the injuries sustained by the plaintiff were not so serious as he claimed that they were. And the same witness testified further on cross-examination that out of a bill for $6,500 rendered by him for medical attendance on the plaintiff and his wife he "should say $200 was for treatment upon Mr. Whitcomb." There was evidence which we think fairly warranted the presiding judge in finding that even that amount was in excess of what could have been properly charged for attendance on the husband. The whole matter was one entirely within the discretion of the presiding judge, and if reviewable here we see no error in the exercise of his discretion. No ruling of law was asked for or made.

nurses and for doctors, other than Dr. Page,
I find were due to the ovarian trouble and
they are disallowed. 4. The services of Dr.
Page, so far as they were necessary, were
mainly rendered because of the condition re-
sulting from the ovarian trouble. His at-
tendance and treatment for the neurasthenia
resulting from the accident were not such
as were reasonably necessary, and tended
rather to prolong and aggravate the nervous
condition due to the accident rather than to
help it.
A certain amount of at-
tendance and treatment were, however, nec-
essary at the time of the accident, and be-
cause of the nervous condition due to the
accident which lasted for a year or more, I
find that a fair value for such services was
$300."

*

[6] These findings, if warranted by the evidence, as we think they were, dispose of the rulings or findings asked for. There was ample evidence from the medical experts of the defendant to sustain the finding that the ovarian cyst or tumor was not due directly or indirectly to the accident. And if the tumor was not due directly or indirectly to the accident, then the defendant was not and could not be liable as matter of law for the damages caused by it and for "the resulting surgical operation and the after condition." It was for the judge who tried the case to say in the first place what injuries resulted from the accident and what, if any, diseases were set in motion by it as the direct and efficient cause, and then to say what medical and other attendance and treatment were rendered necessary and what the fair value of the services and treatment so rendered was. See Hunt v. Boston Terminal Co., 212 Mass. 99, 98 N. E. 786. By "necessary" must be understood to have been meant reasonably necessary in view of the character of the injury or disease. There was testimony from one of the defendant's witnesses who saw the plaintiff's wife shortly after the accident, that he "thought it would take her some time before she would be well nervous

[4, 5] In regard to the other action the judge found that "the plaintiff's wife received full compensation from the defendant for any injuries suffered by her by reason of the accident," and he ruled as matter of law that the plaintiff was not entitled to recover for loss of consortium. The evidence warranted the finding, and the ruling was clearly right. Bolger v. Boston Elev. Ry., 205 Mass. 420, 91 N. E. 389; Feneff v. N. Y. C. & H. R. R. R., 203 Mass. 278, 24 L. R. A. (N. S.) 1024, 133 Am. St. Rep. 291. The plaintiff claimed and introduced evidence tending to show that after the accident his wife had an ovarian tumor of which the accident was the exciting cause, and that as a result of that and of other injuries sustained by the accident she suffered from neurasthenia and was ill for a long time and that he was put to great expense for medical attendance and nursing for her. The plaintiff asked the court to make the following findings or rulings: "3. That upon all the evidence as matter of law the defendant is liable in damages as a case of directly ensuing loss for those damages to the plaintiff caused by the ovarian tumor which developed after the injuries to the ly; thought she would be in bed a month plaintiff's wife, Virginia H. Whitcomb, and the resulting surgical operation and the after condition. 4. That the defendant is liable not only for all damages from traumatic in-fied that at the first visit "I was not satisfied juries resulting from the accident, but also for all other diseases and disabilities which were set in motion by the accident as a direct, immediate and efficient cause, so far as relates to the plaintiff's right of recovery." The court found: "2. That the ovarian cyst from which she [the plaintiff's wife] suffered was not due directly or indi3. rectly to the accident. That she suffered from neurasthenia after the accident; that this nervous disease was caused in part by the accident and in part by the ovarian condition; and that she required

* *

and ailing three or four months." Another of the defendant's witnesses who saw her on May 25, 1900, and November 18, 1903, testi

that the nervous symptoms in the case were genuine or uncontrollable. At the next one I was very decided that, in my opinion, the manifestations were entirely within her control and had nothing to do with the original accident." The same witness testified: "I should think a liberal estimate for all these whole five years would be one visit a week; that would be a very liberal estimate." There was evidence tending to show that the last and final trial of Mrs. Whitcomb's case ended December 3, 1903, and that Dr. Page her attending physician made his last visit three

case well might have led the presiding judge | it shall be held by the Supreme Judicial Court to doubt the genuineness of the manifesta- on exceptions that such request should have tions testified to in regard to Mrs. Whitcomb's been granted, and if all the exceptions by the prevailing party shall be overruled, such court condition, and to find, if such manifestations may direct the entry of judgment for the party were caused by real illness or disability, that in whose behalf the request was made and erthey were due to the ovarian tumor for roneously refused, where a case was fully and fairly tried with an intelligent appreciation by which she was operated upon in November, counsel on each side of the issues involved and 1901, and not to the accident. the principles of law applicable thereto, and, on the ample report of the evidence contained in the exceptions, it was plain that defendant's request for a directed verdict should have been granted, the court would direct judgment in its favor.

Under St. 1909, c. 236, providing that in civil cases, where at the trial a request has been denied that, on all the evidence, a finding or verdict be returned for either party, and a Action by William J. Bothwell, adminisfinding or verdict rendered contrary thereto, if trator, against the Boston Elevated Rail

defendant.

way Company. Verdict for plaintiff, and de- | harm under such circumstances. But in orfendant brings exceptions. Exceptions sus- der that this doctrine may be invoked, the intained, and judgment entered for defendant. jured person himself must be free from blameworthy participation in the event which Coakley & Sherman, D. H. Coakley, R. H. Sherman, and L. F. Monahan, all of Boston, cannot be treated as an excuse for being in has caused the fright. Wrongful conduct for plaintiff. Fletcher Ranney, Wesley E. Monk, and Thos. Allen, Jr., all of Boston, for a position of danger. Black v. N. Y., N. H. & H. R. R. Co., 193 Mass. 448, 450, 79 N. E. 797, 7 L. R. A. (N. S.) 148, 9 Ann. Cas. 485; Rundgren v. B. & N. St. Ry., 201 Mass. 156, 158, 87 N. E. 189. The plaintiff's intestate was engaged with his companions in the wrongful project of "teasing" and "mocking" a Chinaman at work on his own premises. It might reasonably have been anticipated that in some way he would attempt to be rid of his tormentors. But whatever may be said of his conduct in trying to scare the boys away, or of relative rights between him and the boys, it is nevertheless true that the acts in which the plaintiff's intestate joined were wholly without justification and were wrong. It was not an unnatural result of these acts that he should be momentarily put in fear by the victim of his hectoring.

RUGG, C. J. [1, 2] The plaintiff seeks damages for the death of his intestate under St. 1907, c. 392, which authorizes recovery from a street railway company, whose servants in the conduct of its business negligently cause the death of a person, not a passenger or an employé, "in the exercise the exercise of due care." The uncontradicted evidence shows that the plaintiff's intestate at the time of the accident was nine years and nine months old. With other boys he was standing on a sidewalk looking at a Chinaman who was fixing something on the floor of a shop with a hatchet. The boys were "teasing" or "mocking" the Chinaman, who, after a few minutes, "got up with the hatchet in the air and walked toward the door." Thereupon the boys, some of them in fright, scattered in different directions, the plaintiff's intestate running into the street in front of a car of while thus suffering from fright, fatal inthe defendant and being fatally injured. The only fair inference from the evidence is that juries are sustained by reason of impact with the plaintiff's intestate was engaged with a street railway car, it cannot be said that the other boys in vexing the Chinaman. The the injured person was "actively and actualtestimony of one of his companions was that: ly" in the exercise of the diligence which has been held to be necessary in order that there may be recovery under this statute. It has

"McLeod and Miele were with him.

They

were looking at the Chinaman, teasing him. * ** The boys teased the Chinaman." While that of another was: "We were mocking the Chinaman." There was nothing to impair the force of this testimony. The contrary sentence in the statement of one of the plaintiff's witnesses at the inquest, of fered solely to contràdict his testimony at the trial in the superior court in a different respect, was not affirmative evidence of the fact. The point to be decided is, whether a finding was warranted that the plaintiff's intestate was "in the exercise of due care" as required by the statute as a condition of recovery. It is not contended that there is any evidence of active exercise of care by the deceased. But the plaintiff's position is that he was relieved from such exercise of care by reason of the fear into which he was thrown by the conduct of the Chinaman.

Much may be excused in a person under the impulse of fear induced by circumstances over which he has no control and for which he is not responsible. Conduct which unhesitatingly would be pronounced wanting in care in a person under normal conditions may be found prudent in one overwhelmed by fright or confronted with the necessity of instant action in imminent peril. Where the fear has been caused by the defendant there is even more reason for judging with leni

[3] But whether there could be recovery if the intestate had survived and brought an action in his own name, it is plain that the If, present action cannot be maintained.

been settled after elaborate consideration that the words "due care" in this statute mean something more than a negative and passive freedom from fault and require reasonably intelligent and energetic attention to safety, and stand on the same basis as if they were used in an indictment under the same statute. They are not satisfied by "invoking for the test of the defendant's liability under the statute its liability at common law in case of an action for compensation for an injury short of death." Hudson v. Lynn & Boston R. R., 185 Mass. 510, 521, 71 N. E. 66, 71. It follows that the defendant's request should have been granted to the effect that a verdict be directed in its favor.

[4] It is urged by the defendant that this is a proper case for this court to exercise the power vested in it by St. 1909, c. 236, and to direct by its rescript that judgment be entered for the defendant. The case appears to have been fully and fairly tried with an intelligent appreciation by counsel on each side of the issues involved and of the principles of law applicable to it, and its merits on the ample report of the evidence contained. in the exceptions seem plain. Therefore it appears to be a case where the statute properly may be invoked. Archer v. Eldredge,.

and its title, "To provide for expediting the final determination of causes." However laudable the design for preventing delays in the administration of justice, it can be exercised only in accordance with the limitations imposed by the Constitution. Article 15 of the Bill of Rights of our Constitution provides: "In all controversies concerning property, and in all suits between two or more

v. Stone & Webster Engineering Corp., 205 | or verdict has been rendered contrary thereMass. 431, 440, 91 N. E. 411; Newhall v. to, and it shall be held by this court on exEnterprise Mining Co., 205 Mass. 585, 91 N. ceptions that such request should have been E. 905, 137 Am. St. Rep. 461; Burke v. Hodge, granted, then (if all exceptions by the pre211 Mass. 156, 163, 97 N. E. 920, Ann. Cas. vailing party shall be overruled) this court 1913B, 381. may by rescript direct the entry in the trial [5, 6] This course would be followed with- court of judgment for the party in whose out discussion but for the decision of Slocum behalf the request for the finding or verdict v. New York Life Ins. Co., 228 U. S. 364, 33 was made and erroneously refused. Before Sup. Ct. 523, 57 L. Ed. 879, which holds that the statute of 1909 no such power resided in "the right of trial by jury" secured by article any of our courts. The practice is stated 7 of the amendments to the Constitution of the with clearness in Smith v. Lincoln, 198 Mass. United States does not permit the entry, after 388, 84 N. E. 498, where it was held that a verdict in favor of one party, of a judg- after a verdict the only power of the trial ment for the opposing party under circum-judge was to set aside the verdict. The aim stances like those in the case at bar. The of the act is plain both from its provisions question there arose in reviewing the action of the Circuit Court of Appeals which, under the conformity act (U. S. Rev. St. § 914 [U. S. Comp. St. 1901, p. 684]) and following a Pennsylvania statute, had entered judgment in favor of the party for whom the trial court erroneously refused to direct a verdict. The substance of that decision is that it is an unconstitutional exercise of the power of legislation to authorize the entry of judg-persons, except in cases in which it has herement in a case where a trial by jury has been had, except in conformity to the verdict, and that, although the error committed by the trial court may consist solely in its refusal to direct a verdict in favor of one party, yet after a verdict wrongly rendered in favor of the adversary party as the direct result of such erroneous refusal, the only method for correcting that error within the reach of the legislative or judicial departments of government is to order a new trial, and this because of the scope of the meaning of "trial by jury," as secured by the seventh amendment to the federal Constitution. That decision is not a final or binding authority on this court for the reason that the seventh amendment does not control the action of the several states in abridging trial by jury within their own jurisdiction. It applies only to the courts and Congress of the United States. Pearson v. Yewdall, 95 U. S. 294, 296, 24 L. Ed. 436; Twining v. New Jersey, 211 U. S. 78, 98, 29 Sup. Ct. 14, 53 L. Ed. 97. The decision of Slocum v. N. Y. Life Ins. Co. was rendered by a bare majority of a divided court, four of the justices, among whom is a former chief justice of this court, joining in a dissenting opinion. But the deference due to a decision by the highest court of the nation when it challenges the constitutionality of our statute (as it does because our own Constitution secures the right of trial by jury) renders necessary thorough consideration, even though it has been acted upon heretofore in numerous instances without question of its validity.

The substance of our statute is that in civil cases where at the trial a request has been made that on all the evidence a finding or verdict be returned for either party, and

tofore been otherwise used and practiced,
the parties have a right to a trial by jury;
and this method of procedure shall be held
sacred, unless, in causes arising on the high
seas, and such as relate to mariners' wages,
the Legislature shall hereafter find it nec-
essary to alter it." This article has been
It has been
discussed in numerous cases.
held that the Legislature may regulate the
mode in which the right shall be exercised
and that such regulation does not impair the
substance of the right. This rule has been
applied to statutes requiring as a condition
precedent to the trial an affidavit of defense
(Hunt v. Lucas, 99 Mass. 404), the filing of
claim for trial by jury in order to prevent
waiver of the right (Foster v. Morse, 132
Mass. 354, 42 Am. Rep. 438), appeal from
decision of tribunal without a jury (Kenney's
Case, 108 Mass. 492), the giving of bail and
security for costs on appeal from trial before
a magistrate (Jones v. Robbins, 8 Gray, 329,
341; Hapgood v. Doherty, 8 Gray, 373), and
to statutes changing the rule as to challenges
of jurors (Commonwealth v. Dorsey, 103
Mass. 412), the qualifications of jurors (Com-
monwealth v. Wong Chung, 186 Mass. 231,
71 N. E. 292, 1 Ann. Cas. 193; Common-
wealth v. Worcester, 3 Pick. 462), and the
weight to be given to evidence (Holmes v.
Hunt, 122 Mass. 505, 516, 23 Am. Rep. 381),
and restricting the right of the trial judge
to set aside a verdict to cases where motion
therefor is made and to reasons stated (Peir-
son v. Boston Elev. Ry., 191 Mass. 223, 229,
77 N. E. 769; Loveland v. Rand, 200 Mass.
142, 85 N. E. 948; James v. Boston Elev. Ry.,
213 Mass. 424, 100 N. E. 545). See Common-
wealth v. Barry, 9 Allen, 276.

On the other hand it has been held that