Blackburn v. Boston & N. St. Ry. Co.

• Decision Date: 26 February 1909
• Citation: 201 Mass. 186,87 N.E. 579
• Parties: BLACKBURN KNOWLTON v. BOSTON & N. ST. RY. CO. KNOWLTON v.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 186

87 N.E. 579

BLACKBURN KNOWLTON v. BOSTON & N. ST. RY. CO. KNOWLTON v. Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1909

COUNSEL

John T. Wilson and Frederick Chamberlin, for plaintiff.

Henry F. Hurlburt and Damon E. Hall, for defendant.

OPINION

HAMMOND J.

1.These two actions for personal injury were tried together.

It is unnecessary to consider whether or not the order setting aside the verdict at the second trial upon the question of liability only was erroneous.It is true that the plaintiffs alleged exceptions to that order, but no attempt was made to establish the exceptions and they were finally waived.The plaintiffs having waived their right to contest the validity of the order, were bound by it in all subsequent proceedings whether it was right or wrong.It became the law of the case for this third trial, and the justice rightly confined the trial to the question of liability in accordance with its terms.

2.There was no error in the exclusion of the question put by the plaintiffs to the motorman on cross-examination as to whether the circumstances assumed in the question constituted 'as favorable a condition to make up your time as could possibly be calculated.'The cross-examination had been conducted for some time on this line and the judge may well have concluded that the answer to this question, whether it should be in the affirmative or in the negative, would have added nothing to what already had been elicited or could not have been of any assistance to the jury.The plaintiffs do not show that the action of the court was prejudicial to them.

3.There was no error in allowing the exhibits to go to the jury.They were made a part of the deposition of the witness Swan by reason of the cross-interrogatories and had been shown to the jury without any objection on the part of the...