Practice, Civil, New trial. In an action against a corporation operating a street railway for personal injuries sustained from being run into by a street railway car of the defendant in front of which the plaintiff was attempting to drive across the defendant's tracks in his automobile, the jury found in answer to special questions submitted to them by the judge that the plaintiff was in the exercise of due care and that the defendant was not negligent and the judge ordered a verdict for the defendant; whereupon the plaintiff moved for a new trial on the ground that the verdict was against the law as stated to the jury by the judge, that it was against the evidence and the weight of evidence, that the special findings of the jury were inconsistent and that on the evidence one or the other of the findings must be wrong. The presiding judge denied the motion. Held, that the denial of the motion was within the discretionary power of the judge.
In the same case upon the hearing of the motion for a new trial the judge refused to rule at the request of the plaintiff that as matter of law on all the evidence the findings of the jury that the plaintiff was in the exercise of due care and that the defendant was not negligent were unwarranted, and that as matter of law on all the evidence and upon the findings of the jury there was a mistrial. The evidence of the plaintiff on both the issues was contradicted by that of the defendant. Held, that on the conflicting evidence the answers of the jury were neither inconsistent nor unwarranted, and that, as both parties had been found to have used ordinary care, the plaintiff's misfortune was not attributable to the fault of the defendant.
BRALEY, J.
It was discretionary with the presiding judge whether he should grant the plaintiff's motion for a new trial on any of the grounds specified, and the exercise of his discretion would not be reviewable on exceptions. Welsh v. Milton Water Co. 200 Mass. 409, 411, and cases cited.
But, the plaintiff having seasonably requested the judge to rule that "as a matter of law on all the evidence, the findings of the jury both that the plaintiff was in the exercise of due care and that the defendant was not negligent were unwarranted," and that "as a matter of law on all the evidence and upon the findings of the jury in answer to the special questions, there was a mistrial," and the requests having been refused, the correctness of the rulings is open on the exceptions. McDonnell, petitioner, 197 Mass. 252.
Of course questions of law that were or might have been raised at the trial cannot be raised again on a motion for a new trial. Loveland v. Rand, 200 Mass. 142. We understand the plaintiff's contention to be that the answers of the jury are necessarily inconsistent and therefore unwarranted.
The evidence need not be recapitulated. The plaintiff's automobile driven by himself came into collision with a street railway car of the defendant while each was using a public way, causing personal injuries for which he seeks damages. In order to recover he had the burden of satisfying the jury on conflicting evidence that, he being in the exercise of due care, the collision occurred solely through the negligence of the defendant. While these fundamental issues were presented in the form of questions submitted under instructions to which no exceptions were taken, nevertheless they were matters of fact wholly within the province of the jury. Hennessey v. Taylor, 189 Mass. 583, and cases cited. And the answers of the jury, which in substance decided that neither the plaintiff nor the defendant was careless, are neither inconsistent nor unwarranted. Perkins v. Bay State Street Railway, 223 Mass. 235. If each party used ordinary care the plaintiff's misfortune is not attributable to the fault of the defendant, and he must bear the burden which the law places upon him. Brown v. Kendall, 6 Cush. 292, 296. Tracy v. Boston Elevated Railway, 217 Mass. 569. Henry v. Grand Avenue Railway, 113 Mo. 525, 537.
Exceptions overruled.