Copithorn v. Boston & M.R.R.

• Decision Date: 24 June 1941
• Citation: 309 Mass. 363,35 N.E.2d 254
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COPITHORN v. BOSTON & M. R. R.

309 Mass. 363

35 N.E.2d 254

COPITHORN

v.BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Suffolk.

June 24, 1941.

Exceptions from Superior Court, Suffolk County; Baker, Judge.

Action by Harry K. Copithorn against the Boston & Maine Railroad for injuries sustained in collision at grade crossing between automobile and train. Verdict for plaintiff for $3,500 and defendant brings exceptions.

Exceptions overruled.

Argued before FIELD, C. J., and DONAHUE, QUA, DOLAN, COX, and RONAN, Jj.

Taylor & Foley, of Boston, for plaintiff.

F. P. Garland, of Boston, for defendant.

COX, Justice.

This case comes here after a second trial, the defendant's exceptions, taken at the first trial, having been sustained. See Copithorn v. Boston & Maine Railroad, 301 Mass. 510, 17 N.E.2d 713. The jury returned a verdict for the plaintiff. It is unnecessary to review the evidence in detail except in so far as it relates to the defendant's exceptions.

1. The automobile that the plaintiff was operating was in collision with the engine of the defendant's train at a public grade crossing in New Hampshire. The plaintiff, in direct examination, testified that in his opinion the speed of the train was thirty to forty miles per hour. On cross-examination he testified that he did not know whether he formed his judgment of the speed at the time he saw the train; that, after the accident, he had not ‘reasoned’ that it was going at that speed althoughhe had testified to that before; that he ‘could reason that now’; that when he said the train was travelling at that speed that was the result of his reasoning; that he did not make any estimate as to the speed at the time, but afterwards he did ‘some reasoning about it,’ and that, as a result, he then said (at the trial) that the speed was thirty to forty miles an hour. Thereupon the defendant asked that the testimony as to speed be struck out and excepted to the refusal of the judge to strike it out. On redirect examination the plaintiff testified that the train was about seventy-five feet from him when he first saw it; that he had probably driven an automobile over two hundred thousand miles; that from what he saw, he was able to give an opinion as to the speed and that it was thirty to forty miles an hour. On recross-examination he testified that he did not think he formed any judgment of anything at the time. In reply to the question whether his answer as to the speed was the ‘result of reasoning after the accident,’ he testified, ‘No, that is more recalling my sight at the time,’ and that he formed no opinion at the time. In answer to the question, ‘Afterwards, thinking it over, you reasoned it must have been going thirty to forty miles an hour,’ he testified, ‘No, I don't have to reason it out. I make that statement from the way the thing looked to me. I can see it now,’ but that he did not think he formed any opinion at the time he saw the engine coming that it was going thirty to forty miles an hour.

The defendant concedes that a witness who is not an expert may give his opinion as to the speed of a train, if that opinion is based upon observation. Commonwealth v. Sturtivant, 117 Mass. 122, 133, 137,19 Am.Rep. 401;Crafts v. McCobb, 303 Mass. 172, 21 N.E.2d 226; See Johnston v. Bay State Street Railway, 222 Mass. 583, 585, 586, 111 N.E. 391, L.R.A. 1918A, 650;Barney v. Magenis, 241 Mass. 268, 272, 135 N.E. 142. But it contends that the opinion of such a witness is not competent if it is the result of reasoning or calculation made after the observation. We are of opinion that there was no error in the refusal of the judge to strike out the plaintiff's testimony as to the speed of the train.

In Commonwealth v. Sturtivant, 117 Mass. 122, at page 133,19 Am.Rep. 401, the court said: ‘The exception to the general rule that witnesses cannot give opinions, is not confined to the evidence of experts testifying on subjects requiring special knowledge, skill or learning; but includes the evidence of common observers, testifying to the results of their observation made at the time in regard to common appearances or facts, and a condition of things which cannot be reproduced and made palpable to a jury.’ The defendant contends that the opinion or conclusion of the plaintiff as to the speed, in order to be competent, must have been formed or reached at the very time the observations were made. It is true that in the Sturtivant case, in addition to the quotation above, the court, in using the illustration of the panel of a carriage door that was broken by a collision, said, at page 135 of 117 Mass., that, if the panel itself is introduced in evidence, the jury is competent to decide what appearances would follow from blows delivered at different angles and points. But ‘If it cannot be, the witness who saw it may describe, as well as he can, what he saw, and state the conclusion he formed at the time.’ In Commonwealth v. Kennedy, 170 Mass. 18, 23, 24, 48 N.E. 770, 772, an apothecary was permitted to testify that ‘to the best of his knowledge, belief, and recollection,’ he sold poison to the defendant. Holmes, J., said, at page 24 of 170 Mass., at page 772 of 48 N.E.: ‘The identity of a third person always is a matter of inference and opinion, but it is an opinion which any one who remembers facts on which to base the inference may give. Commonwealth v. Williams, 105 Mass. 62, 67;Commonwealth v. Sturtivant, 117 Mass. 122, 133 ;Commonwealth v. O'Brien, 134 Mass. 198, 200. See Commonwealth v. Moinehan, 140 Mass. 463, 464, 5 N.E. 259. The only objection to the form of the question was that it opened a loophole for an answer with only an uncertain memory of the sensations and impressions from which the inference was drawn. No attention seems to have been called to matter of form, or to this aspect in particular, and, so far as we can judge, the witness answered with a sufficiently definite recollection of what he saw to warrant his giving his opinion.’ In Ross v. John Hancock Mutual Life Ins. Co., 222 Mass. 560, 111 N.E. 390, a witness was permitted to give his opinion as to whether the deceased spoke loud enough for the operator of the elevator to hear her when she asked to be let out at the ninth floor, and the court said, at page 562, of 222 Mass.,111 N.E. 390, that, even though the judgmentor estimate necessarily involves more or less of opinion or inference as to familiar objects and well-known matters, it was admissible. See Eldridge v. Barton, 232 Mass. 183, 187, 122 N.E. 272;Morrissey v. Connecticut Valley Street Railway, 233 Mass. 554, 557, 124 N.E. 435;McGrath v. Fash, 244 Mass. 327, 329, 139 N.E. 303;Correira v. Boston Motor Tours, Inc., 270 Mass. 88, 90, 169 N.E. 775. In Crafts v. McCobb, 303 Mass. 172, 21 N.E.2d 226, where a witness was permitted to testify that the appearance of a gap in a hedge bed indicated to him its cause, and was permitted to give that cause, the court said, at page 175 of 303 Mass., at page 227 of 21 N.E.2d: ‘He was manifestly testifying as to the result of his observations made at the place of the plaintiff's fall and giving a conclusion based on what he there saw. * * * The testimony of the witness to which exception was taken conveyed the impression which the things he saw made upon him.’ See Noyes v. Noyes, 224 Mass. 125, 129, 130, 112 N.E. 850.

We are of opinion that the testimony of a lay witness as to results based upon actual observations is not inadmissible even if the conclusion as to those results is not reached at the actual time of the observation. In the case at bar, no question is raised that the plaintiff did not see the train, and the vividness of his recollection may be found in his statement that he could ‘see it now.’ In the circumstances of the case, we are of opinion that the jury was warranted in believing that he could, and that where, as here, it could have been found that his testimony as to the speed, instead of being the result of reasoning, was ‘more recalling my sight at the time,’ it was competent. Where, as here, such knowledge as the plaintiff had as to speed is based upon an impression received from the exercise of his own senses, to which is added such experience as he had had which could be found to enable him to give an intelligent statement as to the results that followed from that knowledge, we are of opinion that such testimony is not inadmissible where the conclusion of fact is not reached at the very moment when the knowledge is acquired. It is important to know whether the observations of the witness are sufficiently within his memory so that the results that follow therefrom by way of conclusion and inference, whenever made, are reliable. After all, it is not the mere opinion that is thus given by a witness ‘but a conclusion of fact to which his judgment, observation, and common knowledge has led him in regard to a subject matter which requires no special learning or experiment, but which is within the knowledge of men in general.’ Commonwealth v. Sturtivant, 117 Mass. 122, 133,19 Am.Rep. 401;Ross v. John Hancock Mutual Life Ins. Co., 222 Mass. 560, 562, 111 N.E. 390;Barney v. Magenis, 241 Mass. 268, 272, 135 N.E. 142. See Wigmore on Evidence, 3d Ed., §§ 656-659, 1924-1929.

2. The defendant excepted to the refusal of the trial judge to rule that the burden was on the plaintiff to prove that he did not violate the Public Laws of New Hampshire, c. 249, § 22, which provided, in effect, that an automobile operator, such as the plaintiff in the case at bar, upon passing a warning sign required by law to be maintained on highways at grade crossings, shall reduce the speed of the vehicle so that, within a distance of one hundred feet from the nearest rail of such crossing, such vehicle shall not proceed at a greater speed than ten miles per hour. See Copithorn v. Boston & Maine Railroad, 301 Mass. 510, 516, 517, 17 N.E.2d 713. Not only was this request refused, but the judge instructed the jury that the burden of...