Opinion
February 10, 1933.
May 22, 1933.
Present: RUGG, C.J., CROSBY, WAIT, DONAHUE, LUMMUS, JJ.
Practice, Civil, Ordering verdict, Requests, rulings and instructions.
Where there was no uncontroverted or indisputable evidence requiring a verdict for the defendant at the trial of an action of tort for personal injuries, and there was evidence warranting a verdict for the plaintiff, a motion by the defendant that a verdict be ordered in his favor properly was denied. No error is committed by a trial judge in refusing to give instructions to the jury based on specially selected assumed facts, even if the facts so assumed are subsequently found by the jury and are the only material facts.
TORT for personal injuries sustained when the plaintiff was thrown to the ground as he was boarding a passenger train of the defendant. Writ dated September 19, 1928.
The action was tried in the Superior Court before Williams, J. The judge denied a motion by the defendant that a verdict be ordered in its favor. Subject to leave reserved under G.L. (Ter. Ed.) c. 231, § 120, a verdict for the plaintiff in the sum of $9,850 was recorded. The judge thereafter denied a motion by the defendant that a verdict be entered in its favor. The defendant alleged exceptions.
E.J. Phillips, ( H. Lawlor with him,) for the defendant.
J.H. Devine, ( A.G. Tierney with him,) for the plaintiff.
We find no merit in the exceptions here taken. There was no uncontroverted or indisputable evidence upon which the trial judge could direct a verdict. He was right in denying the defendant's motion for direction in its favor. Nor was he bound to instruct as requested. If the facts were found to be as assumed in the requests and to be the only material facts, instructions in accord therewith would not have been erroneous; but the judge was not bound to charge on specially selected facts. Barnes v. Berkshire Street Railway Co. 281 Mass. 47, 50-51. The charge sufficiently covered the issues and the evidence. No rule of law was omitted to which the defendant was entitled. No error appears.
Exceptions overruled.