Ryan v. Town of Bristol.

the charge as given, and six of them to the refusal of the court to comply with certain requests to charge.

In discussing the questions pertaining to the charge and the refusals to charge, it must be borne in mind that the entire evidence in the case is not before us, and also that the question of the sufficiency of the whole or any part of that evidence is not before us. The case is not here as upon a motion for a new trial for a verdict against evidence, nor upon proceedings to set aside a nonsuit, where all the evidence in the case would appear of record and the question of its sufficiency or its relevancy would be involved. Aside from the question of evidence the errors assigned, as heretofore indicated, relate entirely to the instructions which the court gave or refused to give to the jury. Bearing these things in mind we will first consider the refusals to charge as requested.

The first of these is the alleged refusal of the court to charge as follows:-" In deciding upon the question of contributory negligence the jury should consider the character of the highway at that place as to breadth of side-walk, direction, straight or not, and the kind of night, whether light or dark, and all the other circumstances.' We assume that evidence of all the matters mentioned in the request was before the jury, although the record perhaps does not clearly show this. The court did not charge this request in terms.

The defendant in its brief claims that in refusing to charge this request in terms the court took away from the consideration of the jury the very facts and circumstances which bear upon the question of due care. If the record disclosed that the court had done this, either in form or in substance and effect, we think it would entitle the defendant to a new trial. But this nowhere appears. The evidence upon these matters was before the jury, and was not withdrawn from their consideration upon any point involved in the trial. In its charge on the question of contributory negligence the court refers to some of the facts and circumstances, and in other parts of the charge had referred to others, but it nowhere

Ryan v. Town of Bristol.

professes to refer to all. All, however, including those embodied in this request, were before the jury.

The jury were correctly told what the exercise of due care meant as applied to one in Ryan's situation that night; that it meant such care as a person of ordinary prudence would have exercised under the same circumstances; and that it was Ryan's duty to use every care and precaution to avoid falling from the bridge that a sober man of ordinary prudence would have used under the circumstances. What circumstances? Why all the circumstances surrounding Ryan as he approached the defective portion of the highway, including those specifically embodied in the request and all the others.

The jury were also told that whether Ryan exercised such care was a question of fact to be determined by them from the evidence; that in the absence of evidence they were not at liberty to guess or surmise that he used such care; and that while the existence of due care might be inferred from the facts and circumstances in evidence, these last must be such and so shown as fairly and reasonably to support and warrant the conclusion that Ryan exercised such care.

It is plain, we think, from this charge that the "evidence" and the "facts and circumstances" to which the court thus alludes and to which it refers the jury, include the very evidence which the defendant claims the court withdrew from their consideration. It seems clear to us that the court in substance and effect complied with this request, and that the refusal to charge in the terms of the request did the defendant no harm.

The next error, stated in the third reason of appeal, is without foundation on the record. Upon this point the court clearly and explicitly charged in substance and effect and almost in terms as requested. This is true also of the error assigned in the sixth reason of appeal and we need not otherwise notice it. The errors assigned in the fourth, fifth and seventh reasons of appeal may be considered together, as they relate to the refusal of the court to charge requests bearing upon the question of contributory negligence. The

Ryan v. Town of Bristol.

not at liberty to guess Its existence may be

substance of these three requests may be stated fairly and with sufficient accuracy for our present purpose as follows: "The plaintiff must prove as a question of fact by some affirmative evidence that Ryan exercised due care. She must prove this by a fair preponderance of evidence. If there is no evidence which shows that he exercised such care the plaintiff has not made out her case. In the absence of any evidence upon this point the jury are or surmise that he exercised due care. inferred from the circumstances of the transaction, but if there is no evidence showing what these circumstances actually were the jury cannot assume its existence. The existence of due care on Ryan's part is not to be inferred from the fact, if it be found, that the town was guilty of negligence, nor from the mere fact, if it be true, that the accident was caused by the fault of the town in not furnishing a sufficient railing or from a defect in the highway; but the jury must have sufficient evidence besides that to show that he in fact used such care."

If we understand correctly the import of these requests, it seems to us, from a somewhat careful examination of the record, that the court in substance charged all that portion of them which contains a correct statement of the law. It charged in terms that the plaintiff must prove, as a question of fact, by a fair preponderance of evidence, that Ryan was in the exercise of due care. It charged in terms that in the absence of evidence bearing on this question, the jury were not at liberty to guess or surmise that he exercised due care. It charged in effect that if there was no evidence showing due care on Ryan's part the plaintiff had not made out her case. It charged that, in the absence of direct testimony from eyewitnesses, the existence of due care on Ryan's part might be inferred from the facts and circumstances in evidence, provided they fairly and reasonably warranted and supported such inference.

There were some parts of the requests, however, which the court did not charge in terms and perhaps not in substance and effect. It did not charge in terms that the plaint

Ryan v. Town of Bristol.

iff must prove that Ryan exercised due care by "some affirmative evidence." We are not quite sure that we understand the claim of the defendant upon this point. If it means that she must prove this by evidence other than what was already in the case, then, so far as the record shows, we think the court was justified in refusing to charge it in terms or in substance and effect. All the evidence then in the case is not before us. For aught that we can see some of it may have clearly tended to prove the existence of due care without the aid of any other evidence. The plaintiff claimed that there was such evidence, and that it did tend to prove due care, and the defendant claimed that it did not. We cannot say from the record that there was no such evidence, or say as matter of law that it did not tend to prove the existence of due care. If there was such evidence its weight. and effect were for the jury. On the other hand, if this claim means, as we rather think it does, that the plaintiff must prove that Ryan exercised due care by evidence relevant upon that precise point and satisfactory to the jury, then in substance and effect the charge shows that the court complied with it. The court told the jury that the evidence -the facts and circumstances-must be of such a nature and so shown as to fairly and reasonably warrant and support them in finding that he exercised due care.

Again, as shown above, the defendant requested the court to charge that the existence of due care on Ryan's part is not to be inferred from the fact, even if true, that the town was guilty of negligence; nor from the mere fact, if true, that the accident was caused by the fault of the town in not furnishing a sufficient railing or from a defect in the highway, but that the jury must have sufficient evidence besides the existence of these two facts to show that Ryan exercised due care.

The court did not comply with this do we see how it could have done so.

request in terms, nor The request as made

is ambiguous and misleading. Taken literally it seems to mean that, even if the jury find the two ultimate facts aforesaid, they must not from the existence of these facts alone

VOL. LXIII.—3

Ryan v. Town of Bristol.

infer the other ultimate fact that Ryan exercised due care. There was apparently no necessity for so charging, if this is what the request means, because there was no claim in the case on the part of anyone that the inference of due care could be drawn from the mere existence of these other two ultimate facts as such. What the plaintiff did claim was that the facts and circumstances in evidence and relevant upon the other two ultimate facts, were also, some of them at least, relevant upon the question of contributory negligence. Taken in this literal way, we think the court did in substance comply with this request. It told the jury that they must find the existence of due care from the facts and circumstances in evidence; that these must be such as fairly and reasonably supported such a finding; and that it was not enough to find that the highway was defective, and that Ryan had fallen and been killed because of the defect, unless they further found, from evidence that warranted the finding, the existence of due care on his part.

If this request means, as perhaps it really does, that the facts and circumstances relevant upon the two ultimate facts aforesaid, and from which they might be established, were none of them also relevant upon the question of contributory negligence, and that the court should have so told the jury, then we think the court did not err in refusing to so charge either in terms or in substance. All the evidence is not before us on this appeal. We are unable to say from the record that, amongst the evidence offered to prove the two ultimate facts aforesaid, there was none that was relevant upon the question of contributory negligence. On the contrary, so far as the record does disclose what that evidence was, it discloses some at least which is relevant upon the question of contributory negligence. The evidence as to the character of the highway at the point in question, and the other matters referred to in the defendant's own request and according to its own claim, as set forth in its second reason of appeal and heretofore considered, are clearly of this nature. How then could the court tell the jury that there was no such evidence?