Clark v. City of Lowell , 83 Mass. 180 ( 1861 )

Dewey, J.

There was no exclusion by the court of any testimony-offered by the parties, nor was the plaintiff prohibited from presenting his case to the jury upon the whole evidence. The remark of the court, to which the exception was taken, was merely as to the effect of an argument to the jury that the counsel for the plaintiff was then urging in his favor. Although the position be entirely sound, as urged on the part of the plaintiff, that an injury received while playing tag might have furnished a legal cause of action against the defendants, had the facts shown it to have been caused -through the default of the defendants and the plaintiff was using due care: yet in the present case the facts stated by the other witnesses-, if believed, would show not only that the plaintiff was at the time playing at the game of tag, but that the place where the accident occurred was a different one from the hole in the planking laid between the rails, which was the alleged defect in the street complained of as causing the liability of the defendants. The suggestion by the presiding judge was in reference to the state of the evidence, and to the fact that the plaintiff’s counsel, by discrediting his only witness, would not only show the plaintiff to have been playing at the game of tag when he received the injury, but also that he received it at a place where no defect in the street was shown to have existed.

The case was put to the jury under instructions, leaving the questions of the credibility of the witnesses and the finding of the facts wholly with them. We do not perceive any sufficient reason for setting aside the verdict. Exceptions overruled