JOSEPH W. REILLY v. BOSTON ELEVATED RAILWAY COMPANY.

Knowlton, C. J. The questions in this case come before us upon exceptions taken at the hearing [Note p54-1] upon the plaintiff's motion for a new trial. The jury had returned a verdict for $3,000 in his favor, upon a declaration in an action of tort, for an injury received in a collision between one of the defendant's cars and a cart, whereby the plaintiff, who was a passenger in the car, was suddenly moved forward, and, as he contended, was thrown down from his seat upon the floor of the car. [Note p54-2] There was much dispute between the parties as to the extent of his injury and as to whether he was thrown upon the floor. At the time of the trial he was suffering from an incurable disease of the spinal cord, which he contended was entirely caused by the injury, and which the defendant contended was due entirely to other causes. There was testimony from which the jury might have found that it was due in part to conditions existing before the accident and

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in part to the aggravation of these conditions and to changes produced by the injury.

In submitting the case to the jury the judge directed them to return a general verdict, and also to answer two questions, as follows:

"1. Was the plaintiff thrown from his seat toward the middle of the car by the collision?

"2. Is the present condition of the plaintiff due to violence received at the time of the collision?"

In connection with the first question the judge said: "The form of the answer I shall not attempt to prescribe for the jury; the jury will make such answer as to the jury seems proper. . . . You may answer Yes or No, or in any other form of words which expresses the response of the jury to the question." In connection with the second question the judge said of the answer: "It may be Yes or No simply, or with any addition which the jury think should be added to a simple Yes or No, or in any other form whatever which is satisfactory to the jury." The jury returned a general verdict for the plaintiff for $3,000, and to the first question answered "No," and to the second question answered "Disagree."

A motion to set aside the verdict and grant a new trial was filed on eight different grounds, stated at length, but those which present a substantial question of law may be summarized as being, in substance, although expressed in different forms, that the answer to the second question was inconsistent with the proper and lawful return of a general verdict for an agreed sum as damages.

The answers must be considered as parts of the whole verdict, and if different parts of it are necessarily inconsistent with one another, it is erroneous in law, and must be set aside. Lufkin v. Hitchcock, 194 Mass. 231. Wakefield v. Wakefield Water Co. 182 Mass. 429.

The judge found at the hearing that one of the main questions in the case was whether the permanently diseased condition of the spinal cord was due to violence inflicted at the time of the collision. A general agreement of the jury as to the extent of the injury caused by the collision was essential to a return of a proper verdict as to the amount of the damages, and this

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would involve a substantial agreement as to the elements of damage resulting from the injury. Upon the evidence in this case a disagreement upon the second question, without more, would imply that the jury could not agree upon the damages, and especially that they could not agree upon the facts and elements that would enter into a proper finding of the amount of the damages. On the other hand, the general verdict shows that the jury, under proper instructions, did in fact agree upon the amount of damages. Moreover, it appeared at the hearing upon another branch of the motion for a new trial, that the jury had agreed upon their general verdict and upon their answer "No" to the first question, before the time at which the officer had been directed to permit them to separate if they had then failed to agree, and that afterwards, with the consent of the officer, they spent a few minutes more upon the last question, and then signed their disagreement upon it. The finding of the judge was in part as follows: "A third view was permissible on the evidence, and was argued to the jury. Dr. Edward W. Taylor, called in behalf of the defendant, testified in substance that the violence which the plaintiff received might have tended to increase to a certain degree an already latent process. Upon all the evidence in the case, taking into account also upon this motion the answer of the jury to the first question submitted to them, it seems to the court that the jury would scarcely be justified in finding as a fact that the plaintiff's present condition was due to such violence as could reasonably be found to have been inflicted upon him at the time of the collision. On the other hand, it was reasonably permissible for the jury to find that the violence actually received by the plaintiff at the time of the collision, acting upon a latent existing but hitherto unsuspected diseased condition of the spine, was in some degree the cause of the plaintiff's present condition. The jury might reasonably have been unanimously agreed upon this view of the plaintiff's case, while it might be a matter of difficulty to state their view in writing in such a form as to command the assent of each juror. It seems to the court fair to assume, in favor of the regularity of the action of the jury, that when they agreed upon the sum of $3,000 as a proper award of damages upon all the evidence, and returned that sum as their award in open court,

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there was some view of the extent of the plaintiff's injuries due to the collision, in which they were agreed, and for which they deemed that $3,000 was a proper assessment of damages. Upon the evidence and fact found by the jury such a view is readily suggested, and the court does not feel required as matter of law nor as a matter of discretion to set the verdict aside."

This finding seems well warranted by the evidence. When we keep in mind the direction of the judge as to the answer to the second question, and the difficulty of framing an answer which would express with accuracy, to the satisfaction of all the different jurors, the particulars in which the present condition of the plaintiff was due to violence received at the time of the collision, and the particulars in which it was not caused or affected thereby, and the extent and degree to which the present condition was due to violence, although the jury might be in agreement as to the general effect of the violence and the impairment produced by it, we do not think that the failure of the jury to agree upon the form of an answer, shows that they did not agree in substance upon all the elements that necessarily enter into a proper assessment of damages. There was no error of law in the refusal of the judge to set aside the verdict on this ground. Wakefield v. Wakefield Water Co. 182 Mass. 429. Florence Machine Co. v. Daggett, 135 Mass. 582. Sutherland v. Standard Ins. Co. 87 Iowa, 505, 513. Chicago & Northwestern Railway v. Dunleavy, 129 Ill. 132, 148. Schneider v. Chicago, Burlington & Northern Railroad, 42 Minn. 68.

Another ground on which the plaintiff moved for a new trial was that the "verdict was irregularly and improperly found, returned, received and recorded."

It is apparent that all parties acted in good faith after the jury went out, and there is no reason to suppose that the mistake of the officer, in thinking that there had been no agreement and in leaving the papers unsealed upon the desk of the clerk of the court until morning, [Note p57] injuriously affected the rights of either

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party. Without discussing the facts found by the judge, we are of opinion that the irregularities were not such as made it his duty to set aside the verdict. See Commonwealth v. Carrington, 116 Mass. 37; Nichols v. Nichols, 136 Mass. 256; Commonwealth v. Desmond, 141 Mass. 200; Commonwealth v. Slattery, 147 Mass. 423; Commonwealth v. Gagle, 147 Mass. 576; Commonwealth v. Heden, 162 Mass. 521; Commonwealth v. Edgerton, 200 Mass. 318; Commonwealth v. McCauley, 156 Mass. 49.

Exceptions overruled.

D. H. Coakley, R. H. Sherman, & W. Flaherty, for the plaintiff, submitted a brief.

S. H. E. Freund, (E. P. Saltonstall with him,) for the defendant.