Practice, Civil, Conduct of trial, Judge's, charge. It is not a violation of the requirement of R.L.c. 173, § 80, that "the courts shall not charge juries with respect to matters of fact, but they may state the testimony and the law," for a judge in his charge to elucidate the proper application of the legal principles involved in the case before him by illustrations drawn from common experience or by reference to cases where similar questions have been decided, or to define the degree of weight which the law attaches to a whole class of testimony; and if, by an unbiased analytical statement of the testimony and of the law, he distinctly indicates to the jury the party who is entitled to prevail, and a verdict is rendered for such party, the defeated party has no just reason to complain, especially if, a question being raised as to whether or not the charge was argumentative, the judge in full and unexceptionable language instructs the jury that what he had said by way of comment was only to make plain the issues, which were solely for their determination.
BRALEY, J.
If trial by jury is to retain its efficiency, the presiding judge by means of suitable instructions must enable jurors to see their way clearly to a right verdict. The provisions of R.L.c. 173, § 80, which first appeared in Gen. Sts. c. 115, § 5, that "the courts shall not charge juries with respect to matters of fact, but they may state the testimony and the law," were not intended to destroy this salutary power. In the construction of the statute it uniformly has been held that, in charging juries, the judge, although prohibited from stating his opinion as to the credibility of witnesses, may sum up the testimony according to his recollection, submitting its effect, however, to their consideration and judgment, and leaving to them for decision all issues of fact within their province. He may elucidate the proper application of the legal principles involved by illustrations drawn from common experience, or by reference to cases where similar questions have been decided, and define the degree of weight which the law attaches to a whole class of testimony. In any clear analysis of the evidence, however impartial, the attention of the jury necessarily must be directed to the weight and importance of particular facts which they may find to have been proved. If an unbiased analytical statement of the testimony and of the law distinctly indicates the party who is entitled to prevail, this furnishes no just reason for the defeated party to complain, either of the method employed or of the adverse verdict. Besides, it is not a violation of the constitutional requirement that judges shall be "as free, impartial and independent as the lot of humanity will admit," if the instructions, while judicially fair, are comprehensively strong, rather than hesitatingly barren or ineffective, and neither the tone of a charge nor the form of verbal delivery are of themselves ground of exception, if no error of law appears. In a word, the judge who discharges the functions of his office is, under the statute as well as at common law, the directing and controlling mind at the trial, and not a mere functionary to preserve order and lend ceremonial dignity to the proceedings. Instances of the exposition and practical application of the statute in accordance with these views may be found in the following cases among others, in which the trial court has been held not to have exceeded its judicial powers. Durant v. Burt, 98 Mass. 161, 165, 168. Oakman v. Boyce, 100 Mass. 477, 483, 486. McKean v. Salem, 148 Mass. 109. Cobb v. Covenant Mutual Benefit Association, 153 Mass. 176, 180, 181. Beal v. Lowell Dracut Street Railway, 157 Mass. 444, 448. Moseley v. Washburn, 167 Mass. 345, 362. Bishop v. Journal Newspaper Co. 168 Mass. 327, 330, 331, 332. Cook v. Bartlett, 179 Mass. 576, 577, 578, 580. Partelow v. Newton Boston Street Railway, 196 Mass. 24. See also Commonwealth v. Johnson, 188 Mass. 382, 387, and cases cited. In the present case, under the exceptions taken at the close of the charge, the defendant alleged a twofold grievance, namely, because the testimony had been incorrectly stated, and because the comment upon it was argumentative, rather than expository. The first objection has been waived by the subsequent stipulation, that the evidence had been correctly stated, and, to ascertain if the instructions are open to the second objection, the entire charge is to be considered, and not isolated portions. The plaintiff sued for personal injuries received while a passenger on a car of the defendant, and in defense it was said that her claim was a fraudulent invention to get damages. In her evidence, she described the injury as being on her right leg, while a medical witness of the defendant, from a physical examination made shortly after the accident, directly contradicted her, by locating it upon the left leg. But even then the jury could say that, if the injury was proved, the distinction of members was of little consequence. If, in his recapitulation of the testimony, the judge dwelt upon this incident at great length, he did not misquote the evidence, and it cannot be said that the illustrations used were wholly inappropriate. The real gravamen of the complaint is, that they conveyed to the jury an argument in favor of the plaintiff. But, if, standing alone, there is some ground for this criticism, as this portion of the charge should have been more cautiously expressed, upon his attention having been directed to the matter, the judge in full and unexceptional language further instructed them that not only were they to recall the evidence from having heard the witnesses, and depend upon their own judgment as to its evidentiary value, but also that what he had said by way of comment was only to make plain the issues, which were solely for their determination.
It is fairly manifest upon a review of the entire charge that no intentional argument was used or expression of opinion given, by which the jury should be led to infer that in the judgment of the court the plaintiff ought to prevail. Cook v. Bartlett, 179 Mass. 576, 580.
Exceptions overruled.