Ames v. New York, N.H.&H.R. Co.
| Decision Date | 21 May 1915 |
| Citation | 221 Mass. 304,108 N.E. 920 |
| Parties | AMES v. NEW YORK, N. H. & H. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Loranus E. Hitchcock, Judge.
Action by Lillian A. Ames against the New York, New Haven & Hartford Railroad Company. Verdict for plaintiff, and defendant excepts. Exceptions sustained.
It was admitted that the witness' husband, who made the declarations testified to in the deposition, was dead at the time the deposition was taken.
Fowler, Bauer & Kenney, of Boston, for plaintiff.
Joseph Wentworth and Charles O. Pengra, both of Boston, for defendant.
To establish the proposition that her buildings were destroyed by fire communicated by the locomotive engines of the defendant, the plaintiff offered in evidence the deposition of Mrs. Eugenia M. Moore (who was deceased at the time of the trial), wherein she testified that shortly after the fire and before the commencement of this action her husband made certain declarations relative to its origin. These declarations were made on the Sunday following the fire, to the plaintiff and her husband, at the house of the declarant.
The deponent testified:
‘He said sparks from the engine, or locomotive, whatever you call it, had set the carriage house on fire, but he would not like to be called as a witness because he was in the employ of the railroad and he would not to lose his job.’
Moore was then in the employ of the defendant as an assistant station agent, at the Spring Street station, which was located on the line of the railroad, was in plain view of the property destroyed, and distant 490 feet therefrom. There is no testimony in the deposition, or otherwise reported, which states how the subject-matter of the origin of the fire was introduced, although it reasonably may be inferred that the owner came in search of information and that the declaration was made in answer to questions.
There is no evidence that at the time of the fire or immediately preceding it Moore was at the station or at any place from which he could see at the same moment both locomotives and buildings. There was no evidence that he in fact saw sparks fly from a locomotive to the buildings and that following such flight he saw fire in, upon or near to the buildings.
The defendant seasonably excepted to the reading of the deposition, and especially to the declaration of Moore on the ground that it does not sufficiently appear that it was of...
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