Desmond v. Boston Elevated Ry. Co.
| Decision Date | 04 January 1946 |
| Citation | 319 Mass. 13,64 N.E.2d 357 |
| Parties | PATRICK J. DESMOND, administrator, v. BOSTON ELEVATED RAILWAY COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 4, 1945.
Present: FIELD, C.
J., LUMMUS, QUA DOLAN, & WILKINS, JJ.
Wanton or Reckless Conduct. Evidence, Competency. Witness, Contradiction. Practice, Civil, Amendment, Judicial discretion.
A finding of wanton or reckless conduct of the motorman of a street car would not have been warranted by his testimony to the effect merely that, as he drove the car up an incline in an elevated station in the evening at a speed of from five to eight miles per hour, with nothing to obstruct his vision ahead, he saw a dark object lying between the tracks before him, that he immediately applied the brake and stopped within sixteen feet, and that, upon getting out of the car, he "found out it was a man," whom the car had run over.
A statement by a motorman of a street car to a police officer was not competent at a later trial to prove a substantive fact set forth therein, but was competent only so far as it tended to contradict testimony of the motorman.
Testimony by a motorman of a street car, that a written memorandum of a police officer of what the motorman had said to the officer was correct
"as much as I know of it," in the circumstances of his examination could not be taken as an adoption by him on the stand of the truth of a statement in the memorandum contradicting certain previous testimony by him.
At the close of the evidence at the trial of an action for causing death of one on premises of the defendant, no abuse of discretion appeared in the denial of a motion to amend the declaration by adding to a count setting forth only wanton or reckless conduct a count setting forth simple negligence, where the evidence left it apparent that the death was caused while the decedent was not an invitee on the premises.
TORT. Writ in the Superior Court dated March 1, 1943. The case was tried before Forte, J.
W. S. McCallum, for the plaintiff. S. P. Sears, for the defendant.
This is an action for conscious suffering and death of the plaintiff's intestate on December 11, 1942 as a result of being struck by a car of the defendant on property of the defendant under its control at its Sullivan Square terminal in Boston.
The trial was had upon a declaration which alleged only wilful, wanton and reckless conduct on the part of the defendant and did not allege simple negligence. Under our practice these claims are distinct in kind and not merely in degree, and one does not include the other. Miller v. United States Fidelity & Guaranty Co. 291 Mass. 445 , 447. Commonwealth v Welansky, 316 Mass. 383 , 400. The judge directed a verdict for the defendant. He also refused to allow the plaintiff to amend his declaration to set up simple negligence. The plaintiff excepts to both of these actions of the judge. Additional questions relating to evidence will be considered in connection with the direction of the verdict.
1. There was no error in directing a verdict for the defendant upon the declaration as it stood. The evidence would not have warranted a finding of wilful, wanton, or reckless conduct on the part of the defendant.
The evidence is meager and obscure as to the situation and construction of the defendant's premises where the deceased was struck. The only evidence on this point tends to indicate that the contact occurred upon an "incline" up which street cars ran from a lower to a higher level. The deceased was removed from under a car on this incline and was pronounced dead upon being taken to a hospital. The only witness of what happened when the deceased got under this car was the motorman of the car, who was called by the plaintiff. The testimony of this witness need not be repeated in detail. It tended to show that at 9:34 in the evening he drove his car up the incline at a speed of between five and eight miles an hour; that when he got within ten feet of the deceased he thought he saw a dark object "between the tracks" lying "like a rag or something in the track, right between the tracks and you couldn't make it out" that he immediately applied the sand and the brake and stopped within sixteen feet and upon getting out of his car "found out it was a man"; that he had his eyes on the track as the car started up the incline; and that there was positively nothing to interfere with his vision. We cannot add to this testimony an alleged declaration of the witness to a police officer which the plaintiff construes as meaning that when the witness started up the incline he observed the deceased lying across the rails about ninety feet up. The judge rightly ruled that this evidence was competent only in so far as it tended to contradict the testimony of the witness on the stand. G. L. (Ter. Ed.) c. 233, Section 23. Brooks v. Weeks, 121 Mass. 433 . Manning v. Carberry, 172 Mass. 432 , 433. Kavanaugh v. Colombo, 304 Mass. 379 , 380-381. Mroczek v. Craig, 312 Mass. 236 , 239. The case of Leahy v. Standard Oil Co. of New York, 220 Mass. 90 , at page 95, cited by the plaintiff, is not in point. Later the witness was asked whether "that statement," referring to a written memorandum of the police officer as to what the witness was alleged to have said to him, was "correct, leaving out the part about the body across the track." His answer, "As much as I know of it," cannot in our opinion be taken as an adoption by him on the...
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