JESSE A. DOYON, JR. vs. PROVIDENCE AND WORCESTER RAILROAD COMPANY.

JACOBS, J. The plaintiff's principal argument is that the Superior Court judge erred by permitting a jury of thirteen persons to deliberate and return a verdict. Contrary to the general rule, see Trustees of Stigmatine Fathers, Inc. v. Secretary of Admn. & Fin., 369 Mass. 562, 565 (1976), we consider this issue, although not raised below, because of the jurisdictional

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gloss which the plaintiff has given his argument and also because we find no reported decision which addresses the common practice in the Superior Court of permitting, with the agreement of the parties, all impanelled jurors to decide civil cases. There was no error.

By authority of G. L. c. 234, Section 26B, [Note 1] fourteen jurors were impanelled at the start of the trial of the plaintiff's negligence claim. One juror was excused when the parties rested. The remaining thirteen jurors, after receiving the judge's instructions, which included a reference to a jury verdict by a count of "11-to-2, 12-to-1, 13-to-all," deliberated and returned a special verdict by which they found that the defendant had not been negligent. [Note 2] The record discloses no objection or discussion with respect to this instruction or to the number of deliberating and deciding jurors before the jury retired to deliberate. The plaintiff, without intimating that a timely objection was raised, suggests in his brief that jury composition was the subject of an off-the-record conference. [Note 3] In the circumstances, we treat the absence of objection as tantamount to agreement. [Note 4] See Amado v. Commonwealth, 349 Mass. 716, 722 (1965);

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Spence v. Reeder, 382 Mass. 398, 411-412 (1981).

The plaintiff claims that the mandatory provisions of G. L. c. 234, Section 26B, raise a jurisdictional barrier to the receipt of a verdict from a jury of more than twelve persons in a civil action. That argument misperceives the purpose and function of Section 26B, which is "designed to accommodate the public's interest in avoiding a second `long and expensive trial' while protecting the . . . right to a trial by jury." Commonwealth v. Haywood, 377 Mass. 755, 768 (1979), quoting from Commonwealth v. Bellino, 320 Mass. 635, 642 (1947). The statute establishes a reasonable and economical mechanism for dealing with the death or incapacity of an impanelled juror. Commonwealth v. Bellino, supra at 642. While the anomalous references to "jurisdiction" in Section 26B might be read as buttressing the court's established authority to receive the verdict of a twelve-member jury, they cannot reasonably be construed as speaking to the validity of a verdict of a lesser or greater number in a civil trial. [Note 5] That a jury of twelve is not a jurisdictional requirement in civil trials is evident in the statutory leeway given to proceeding with as few as ten jurors in the absence of agreement and with any lesser number if the parties agree. See G. L. c. 234, Section 34B.

Trial by a jury of twelve is not constitutionally mandated. Williams v. Florida, 399 U.S. 78, 86-103 (1970). Opinions of the Justices, 360 Mass. 877, 879 (1971). Article 15 of the

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Massachusetts Declaration of Rights, while guaranteeing trial by jury in certain civil cases, does not prescribe the number of jurors. "`[T]he fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance . . . .'" Opinions of the Justices, supra at 879, quoting from and supplying emphasis to Williams v. Florida, 399 U.S. at 102.

As part of its inherent authority, the Superior Court "has wide power to do justice and to adopt procedure to that end." Fanciullo v. B.G. & S. Theatre Corp., 297 Mass. 44, 51 (1937). See Boyajian v. Hart, 312 Mass. 264, 266 (1942). "Short of impairment of the vital elements of the jury . . ., there is no constitutional obstacle to its regulation and modification in the light of changed conditions or perceptions, or to the abandonment of older modes, or to the introduction of new ones." Freeman v. Wood, 379 Mass. 777, 779-780 (1980). "[W]hat matters is whether [an adopted] procedure strikes at the fundamentals of the jury . . . ." Id. at 781. Concern for the avoidance of mistrials in protracted cases frequently results in more than twelve jurors participating in civil trials in the Superior Court. Given the five-sixths rule of G. L. c. 234, Section 34A, [Note 6] a jury of thirteen can participate in the decisional process without altering significantly the mathematics or substance of any party's statutory burden of persuasion. It is not unreasonable, therefore, for a judge, with the agreement of the parties, to permit all thirteen jurors who have heard a civil case to decide it. No jury fundamentals are undermined by such practice.

Even were we to conclude that the agreement of the parties in a civil case was insufficient to relieve the court of the Section 26B directive to reduce the jury to twelve members, we would be disinclined to apply a per se rule of reversal. [Note 7] The

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harmless error standard of Mass.R.Civ.P. 61, 365 Mass. 829 (1974), is sufficient to test the validity of the verdict rendered, and nothing before us indicates that the decision by thirteen jurors in this case was inconsistent with substantial justice.

We briefly touch on the plaintiff's other claims of error.

The collision that gave rise to the plaintiff's claim occurred in Rhode Island in 1984, and, with the acquiescence of the parties, the substantive law of that State was applied throughout the trial. The plaintiff claims that the judge erred by refusing his request that the jury be instructed on the doctrine of last clear chance. Assuming, for the purposes of this decision, the continued vitality of that doctrine after the enactment of Rhode Island's comparative negligence statute, [Note 8] we hold the refusal to instruct was not error.

The plaintiff was injured when his parked truck was struck by the defendant's train at a railroad crossing. Basic among the issues addressed and argued at trial was whether the defendant's employees negligently failed to stop the train once they knew, or should have known, that the plaintiff's truck was "fouling" the track.

The last clear chance doctrine as enunciated in the case law of Rhode Island generally is applicable to a defendant who fails to exercise due care to prevent an avoidable injury to a plaintiff at a time when the defendant is aware or charged with awareness of the plaintiff's having negligently

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placed himself in a position of a peril which he does not comprehend or from which he is unable to extricate himself. New England Pretzel Co. v. Palmer, 75 R.I. 387, 391 (1949). The fundamental principle of that doctrine is that the negligence of the defendant is not excused by the negligence of the plaintiff if the defendant had the last opportunity to avoid the injury. Malfetano v. United Elec. Ry., 58 R.I. 129, 141 (1937). Major v. Grieg, 102 R.I. 379, 388 (1967).

Where, as here, the issue whether the defendant negligently failed to avoid injuring the plaintiff was fully tried, and a jury specifically found the defendant not negligent, the doctrine of last clear chance is irrelevant. The linchpin of the doctrine is proof of negligence on the part of the defendant. Goodman v. New York, N.H. & H.R.R., 84 R.I. 240, 244-245 (1956). The jury verdict renders harmless any failure to instruct on last clear chance.

We decline to review other claimed errors in the judge's instructions to which objections were not taken. Mass.R.Civ.P. 51(b), 365 Mass. 816 (1974). See Rice v. James Hanrahan & Sons, 20 Mass. App. Ct. 701, 712 (1985).

Judgment affirmed.