Winn v. City of Lowell , 83 Mass. 177 ( 1861 )

Metcalf, J.

We find nothing erroneous in any of the rulings or instructions at the trial, except the last instruction, which should have been given as prayed for by the defendants; namely, that if the female plaintiff was a person of poor sight, common prudence required of her greater care in walking upon the streets, and avoiding obstructions, than is required of persons of good sight.

The instructions on the first five prayers of the defendants weie substantially correct; they accurately stated the general principles of law which were applicable to the case; and the only objection to them is, that they were not discriminatingly applied by the judge to the testimony before the jury. But this is not a legal ground of exception in any case, unless the court can see that the jury may have been misled, or may not have sufficiently understood the instructions to enable them to decide according to the rules of law therein expressed. We do not perceive anything unintelligible, or likely to mislead the jury, in these five instructions.

It is not to be inferred that the court, by overruling all the exceptions but the last, decide that an elevation of a plank an inch and one half above its proper level, in a street, is an indictable or actionable defect in the street. New trial granted.