Crowley v. Swanson
| Decision Date | 23 May 1933 |
| Citation | 283 Mass. 82,186 N.E. 46 |
| Parties | CROWLEY v. SWANSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Middlesex County; J. J. Burns, Judge.
Action by Beatrice Crowley against Rudolph Swanson. A verdict was directed for defendant, and the case reported.
Judgment for defendant.
T. J. Driscoll, of Boston, for plaintiff.
J. E. Hannigan and W. H. Taylor, both of Boston, and G. E. Bruen, of Brookline, for defendant.
At about half past nine on the evening of May 29, 1928, the plaintiff was a passenger in an automobile which was standing, headed north toward Lowell, on the easterly side of a road about twenty feet wide in Wilmington. On the westerly side, partly in an electric car track, one Gilson was driving an automobile in the opposite direction. The defendant also was on the road, operating an automobile, as will appear. In a collision of automobiles the plaintiff was hurt. She brought this action of tort for negligence. The trial judge, subject to the plaintiff's exception, directed a verdict for the defendant, and reported the case.
The evidence was unsatisfactory. The defendant testified that he was travelling north toward Lowell, that when he saw the Gilson automobile coming he stopped, and that then the Gilson automobile struck his automobile, kept on to strike another behind him, and finished its course in the car tracks, turned around so as to be headed north. The plaintiff and her fellow passengers testified that an automobile travelling southerly at a high rate of speed behind the Gilson automobile cut out of line, turned back into line, struck the Gilson automobile in the rear, and drove it across the road into the automobile in which the plaintiff was riding. Gilson testified, reluctantly and evasively, that his automobile was struck by another and driven into the automobile in which the plaintiff was riding; but he finally admitted that he had no personal knowledge of what automobile hit him or in what direction it was going.
The evidence justified a finding of negligence on the part of the operator of an automobile travelling south in the rear of the Gilson automobile. The real question is whether there was evidence to identify the defendant with that operator.
The plaintiff declared that the defendant ‘bumped Gilson's car into us and bumped Gilson across the car track.’ She testified ‘Swanson's car, the second car, struck the car that struck our car.’ But later she admitted that she knew nothing of the identity of the operator of the automobile that struck Gilson's automobile except what had been told her afterwards by her fellow passengers. Her fellow passengers, in their testimony, furnished no identification. Gilson testified at one time, ‘The Swanson car struck my car,’ but later definitely left his testimony as before stated, that he did not know what automobile hit his. His testimony thus became of no value. Sullivan v. Boston Elevated Railway, 224 Mass. 405, 112 N. E. 1025;Martin v. Boston Elevated Railway, 262 Mass. 542, 160 N. E. 300.
The plaintiff's case upon the identity of the defendant with the operator of the automobile which, upon the evidence for the plaintiff, struck the Gilson automobile in the rear, thus rests wholly upon the plaintiff's own testimony given as a conclusion derived from hearsay. It is true that incompetent evidence, once admitted without exception, need not be stricken out even upon later motion (Boyle v. Columbian Fire Proofing Co., 182 Mass. 93, 99, 64 N. E. 726;Burke v. Kellough, 235 Mass. 405, 408, 126 N. E. 787;Rich v. Rogers, 250 Mass. 587, 589, 146 N. E. 246, 37 A. L. R. 656;Commonwealth v. Valentino, 257 Mass. 419, 154 N. E. 179; see, also, Buckley v. Frankel, 262 Mass. 13, 15, 159 N. E. 459), exerts its logical and natural probative force, and will be considered upon the question whether there is evidence requiring the submission of the case to the...
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Pochi v. Brett
...footnote 1. The defendant did not seek to limit the scope of the report. Drew v. Drew, 250 Mass. 41, 45, 144 N.E. 763;Crowley v. Swanson, 283 Mass. 82, 85, 186 N.E. 46;Solomon v. Dabrowski, 295 Mass. 358, 360, 3 N.E. 2d 744, 106 A.L.R. 464;Jackson v. Colonial Provisions Co., Inc., 314 Mass.......
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...The trial judge may reconsider its admission and strike it out, provided no hardship befalls the party introducing it. Crowley v. Swanson, 283 Mass. 82, 85, 186 N.E. 46.' Walsh v. District Court of Springfield, 297 Mass. 472, 478, 9 N.E.2d 555, 559. Equally he may exclude it without waiting......
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Walsh v. Justice of the Dist. Court of Springfield
...The trial judge may reconsider its admission and strike it out, provided no hardship befalls the party introducing it. Crowley v. Swanson, 283 Mass. 82, 85, 186 N.E. 46. The petitioner might have made an application for a rehearing in the District Court if he thought he had suffered any rea......
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