Davis v. Boston Elevated Railway Co.

• Decision Date: 06 April 1920
• Citation: 235 Mass. 482
• Parties: WILFRED W. DAVIS v. BOSTON ELEVATED RAILWAY COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 482

WILFRED W. DAVIS v. BOSTON ELEVATED RAILWAY COMPANY.

Supreme Judicial Court of Massachusetts, Norfolk.

April 6, 1920

November 14, 17 1919.

Present: RUGG, C.

J., BRALEY, DE COURCY, PIERCE, & JENNEY, JJ.

Practice, Civil New trial, Findings of fact by judge. Words, "Memorandum of Decision," "Material," "Artifice."

A judge in denying a motion for a new trial of an action at law need not make any findings of fact.

Upon exceptions in an action at law, where it appeared that, in denying a motion for a new trial, the judge had filed a paper entitled a

"Memorandum of Decision," it was stated that the paper was called so improperly.

While a paper entitled a "Memorandum of Decision," filed by a judge accompanying an order denying a motion for a new trial of an action at law, ordinarily would form no part of the record upon exceptions taken to the order, where the paper expressly was made a part of the bill of exceptions, its contents were held to be before this court in every material aspect.

Statement, by RUGG C. J., of the controlling principles of law respecting the granting of motions for new trials on the ground of newly discovered evidence.

The determination of a motion for a new trial of an action at law on the ground of newly discovered evidence rests within the sound judicial discretion of the trial judge.

At the trial of an action against a street railway company for personal injuries resulting from a foreign substance entering the plaintiff's eye coincidentally with an explosion upon or under a street car of the defendant, the plaintiff contended that the foreign substance was metal that blew out from a fuse box on the car, and the defendant contended that it was a bullet from a cartridge placed upon the track by a third

person. The jury found for the plaintiff.

The defendant moved for a new trial on the ground of newly discovered evidence which would tend to prove that, within forty-eight hours after the accident, a Roentgen ray photograph of the plaintiff's eye was taken, which revealed that the foreign substance was a bullet and not part of a fuse box. The motion was extensively heard twice and was considered at length by the trial judge, who denied it mainly on the grounds, that he did not place reliance upon the testimony of a witness, who first called the defendant's attention to the Roentgen ray photographs and who had taken the photographs, that he was not satisfied that the photographic plates were sufficiently identified as pictures of the plaintiff's eye and that the testimony of the witness was not of sufficient weight to lead his mind to the conclusion that it would have an effect to lead the jury to a verdict more favorable to the defendant in case a new trial was granted. There was evidence warranting the conclusions of the judge.

Held, that the determination of these facts by the judge was not subject to revision, and that his denial of the motion was proper.

In denying the motion for a new trial in the circumstances above described, the judge filed a statement of further findings, among which was a finding that the evidence was not newly discovered, that the evidence was cumulative, and that "artifice was practised" in the production of the photographic plates, which findings were made without supporting evidence; and from the statement it appeared that there were other inconsistencies in the findings of the judge; but it was held, that these errors did not affect nor vitiate the judge's main decision, that he could not place reliance upon the testimony which was relied on by the defendant to identify the photographic plates as pictures of the plaintiff's eye, and that the record showed no abuse of judicial discretion.

The action above described was twice tried. At the first trial, a physician called by the plaintiff testified that "There evidently was an X-ray taken of" the plaintiff's eye within three days after the accident. At the second trial, nine months later, the same witness testified, "An

X-ray record shows that there was a foreign body in his eye of some sort." There was a verdict for the plaintiff at the second trial and exceptions of the defendant were overruled two years after the first trial. Within a month thereafter the motion for a new trial, above described, was filed. The judge found that the defendant failed in the exercise of due diligence to discover the evidence on which he relied in his motion. Held, that the finding was not without support in the evidence.

It is not error for a judge, who, upon the denial of a motion for a new trial, filed a statement of facts upon which he relied in so doing, to withdraw such statement from the files and two months later to restore it, after, upon a rehearing of the motion, he has affirmed his former action.

TORT for personal injuries sustained by the plaintiff on July 6, 1912, from being struck in the left eye by a piece of metal alleged to have been thrown from the defendant's car by reason of an explosion of a fuse box. Writ dated August 6, 1912.

In the Superior Court, the action first was tried before McLaughlin, J., when the jury found for the plaintiff in the sum of $1,000. On motion by the defendant, the verdict was set aside on the ground that it was against the evidence and the weight of the evidence, and a new trial was ordered.

At the second trial, which was before Irwin, J., the jury found for the plaintiff in the sum of $15,000, and exceptions by the defendant were overruled by this court on January 28, 1916, in an opinion reported in 222 Mass. 475. On February 10, 1916, the defendant filed a motion for a new trial on the ground of newly discovered evidence. The motion was heard on March 4 and on April 8, 1916, and was denied on November 14, 1916, the judge making formal findings and rulings in a paper called a "Memorandum of Decision." In substance, these were as follows:

"The defendant in the above entitled case moves that the verdict of the jury be set aside and a new trial ordered upon the ground of newly discovered evidence. The defendant's motion is bottomed upon certain affidavits and X-ray pictures thereto attached. At the hearings thereon, the motion was opposed by the plaintiff. The parties were heard at length on two occasions. I have examined into the history of the case and considered all the matters and things that have been submitted to me, touching upon the defendant's motion.

"1. No authorities are required to verify the legal principle that where a trial of a cause has obviously resulted in a miscarriage of justice the court has the right to set the verdict aside; it not only has that right but in the performance of its duty it is bound to do so. It is an equally sound legal doctrine that courts are very cautious how they overthrow verdicts that are resultant of an exhaustive and deliberate trial of the issue presented. If our courts were to lightly regard the verdicts of juries and in off-hand fashion set them aside the result would be a complete subversion of our legal procedure.

"Now, as to the motion here presented. "The defendant bases its contention that its motion to set aside the verdict and order a new trial ought to be granted upon the discovery in the way of affidavits attached to the motions, of three X-ray plates `taken of the plaintiff's eye' shortly after his injury. The plaintiff received his injury on July 6, 1912. The X-ray examination of his eye is said by the affiant, Dr. Liebman to have been made by him on July 8, 1912, `at the request of the physician in charge' at the Massachusetts Eye and Ear Infirmary. The hospital records of the case which were presented in evidence at the trial contain no reference of X-ray plates having been made. Dr. McDonald, the surgeon who performed the operation of removing the substance from the plaintiff's eyes says in his affidavit: `Neither at or before the time of the last trial had I any knowledge of the existence of X-ray plates showing the character of the foreign substance lodged in Davis' eye. I first learned that X-ray plates were in existence since the verdict had been rendered on the second trial.' While Dr. Liebman says that the plates were made `at the request of the physician in charge' they appear to have served no valuable use, as no such fact was noted in the hospital records nor were the plates submitted to Dr. McDonald, the master surgeon in the case. As relating to the surgical or legal phase of the plaintiff's case the X-ray plates appear for the first time on February 2, 1916, the date that Dr. Liebman telephoned to Mr. Pinanski saying `I have three plates now in my possession . . . and you are welcome to see them if you choose' (Mr. Pinanski's affidavit).

The hospital record of August 16, 1912, states `Operation removed F. B. [interpreted by hospital official as meaning foreign body] from sclera and conjunctiva.' Does it require the aid of an X-ray lens to identify a cartridge bullet? From school-boy to man are not all among us familiar with the attributes of such a thing? Would there have been any hesitation in the two surgeons who removed the metal in recognizing it as a bullet? Yet of the several witnesses who gave to the jury a minute description of the metal that they had seen and handled no one of them, on examination and cross-examination, said the thing was a bullet.

"Properly verified X-ray plates are admissible in evidence in the trial of cases when they are deemed to have a tendency to aid the court and jury to determine the issue being tried. The plaintiff in this case contended at the hearings on the defendant's motion that the prints made from the X-ray plates in question here do not portray the substance which was in his eye at the time that the plates are alleged to have...