Ducharme v. Holyoke St. Ry. Co.
| Decision Date | 20 October 1909 |
| Citation | 89 N.E. 561,203 Mass. 384 |
| Parties | DUCHARME v. HOLYOKE ST. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Oct 20, 1909.
The court's remarks in the charge regarding the testimony of plaintiff and Boulais were as follows:
Plaintiff's eighteenth request was:
'The fact that the defendant could not run down the plaintiff from behind under ordinary circumstances without negligence or willful wrong is a circumstance the plaintiff had a right to act upon, and to assume that defendant would exercise proper care.
J. B. Carroll and T. D. O'Brien, for plaintiff.
Brooks & Mamilton, for defendant.
The collision in which the plaintiff was injured and lost the sight of his left eye occurred December 28, 1906. The defendant was allowed to introduce evidence that in 1904, in a saloon, he had been struck on the left cheek bone and his left eye injured. This evidence was received under his objection. He then asked to have it excluded, and the judge refused to exclude it then but said that he would strike it out afterwards unless other evidence was put in. It does not appear that other evidence was put in on this matter; but the judge's attention was not again called to it, and he made no further ruling. The plaintiff had not excepted to its admission. This evidence might be material upon the question of damages, to show what the condition of the plaintiff's left eye was just before the accident. It cannot be said that the evidence was not competent, as one step towards showing that condition; the judge's attention was not called to the fact that there was no further evidence to show that the prior injury had produced any continuing effect upon the plaintiff's eye; and if we assume that the plaintiff has now the right to contend that the evidence ought not to have been admitted or that the testimony should have been stricken out upon his request, we are yet of opinion that he shows no right of exception.
Testimony of the injuries suffered by the plaintiff in 1907 and of their effect upon the left side of his head and his left eye was admitted solely upon the question of damages. It was competent for the defendant to show, if it could, that his injuries were caused in whole or in part by another cause after the accident in question, and so that the defendant could not be held for the full amount of damages claimed. And if there had been any error in the admission of evidence upon the question of damages, it was made immaterial by the general verdict for the defendant. Carroll v. Boston Elev. Ry., 200 Mass. 527, 533, 86 N.E. 793; Oak Island Hotel Co. v. Oak Island Grove Co., 165 Mass. 260, 42 N.E. 1124. It may be true, as has been urged in argument, that this testimony, if it had been admitted generally, would have been unduly prejudicial to the plaintiff upon the issue of his due care; but here the jury were expressly told that the evidence was received only for the one purpose which has been stated, and it must now be presumed that they followed the instructions of the judge. Sullivan v. Lowell & Dracut St. Ry., 162 Mass. 536, 39 N.E. 185. And the testimony of Dr. Gates as to the effect of the subsequent injury upon the plaintiff's vision if he already had lost the sight of his left eye was not made incompetent by the facts that the witness had seen the plaintiff only twice and had noticed no trouble as to discoloration or swelling of the other eye. This went only to the weight of his testimony. We cannot say that it is not a matter of expert knowledge whether or how far the vision of one eye or its power of adjustment or accommodation to distances, which had caused trouble after the loss of the other eye might be affected by another injury in or close to the same place.
The exclusion of the letter written by Collyer to the plaintiff was correct. The motorman Hill had denied any connection with the letter of knowledge of it, and there was no evidence to contradict him. It was as likely that Collyer was making a barefaced attempt to obtain some advantage for himself by trading upon a pretended influence over Hill as that he wrote the letter in collusion with Hill. It was only by conjecture that any inference could be drawn from this letter against Hill's honesty and credibility as a witness. The reasoning of the opinion in Com. v. Min Sing, 202 Mass. 121, 88 N.E. 918, supports this view. Inferences from the mere declarations of a third party are no more competent than the declarations themselves. Farrell v. Weitz, 160 Mass. 288, 35 N.E. 783.
The rejection of the testimony of Erck and of Ferry as to their observations of the weather on the day of the accident presents a more difficult question. But we are of opinion that it was for the judge in the exercise of his discretion to determine whether this testimony was too remote to assist properly the jury in settling the issue upon which it was offered. Sargent v. Merrimac, 196 Mass. 171, 174, 81 N.E. 970, 11 L. R. A. (N. S.) 996, 124 Am. St. Rep. 528, and cases cited. It perhaps would have been a wiser exercise of that discretion to have admitted the testimony of these two witnesses to be considered together, and to have left it to the jury to determine the weight to be given to it under proper instructions; but we cannot say as matter of law that its exclusion was erroneous.
The accident occurred at 20 minutes after 7 o'clock, about three hourse after sunset, on a winter's night. The evidence for the plaintiff tended to show that it was a dark and cloudy night; according to the defendant's evidence, it was a bright night. This was a material question upon the main issues in the case. The moon had risen more than four hours before the happening of the accident, and was full two days afterwards.
Erck was a sergeant in the United States army, stationed at the armory at Springfield, and charged with the duty of taking and recording observations there. He testified that he had observed and recorded the state of the weather and had tested the amount of light and cloudiness at the armory, six or seven miles distant from the place of the accident, at the hours of 7 in the morning, 2 in the afternoon, and 9 at night of the day in question. The plaintiff offered to show, by him and by his records, that on this night at 9 o'clock, at the Springfield armory, there was a state of 'total cloudiness,' that is, that neither sun nor moon would be visible; and this evidence was excluded. Erck also testified that the weather as to rain or snow at the armory might differ from that at places six or seven miles away.
Ferry testified that he had taken and recorded observations at his house in Holyoke. The plaintiff offered to show by him that, on the day of the accident, the weather was cloudy at the hours of 7 in the morning, noon, and 6 o'clock in the evening; and this evidence was excluded. The distance from Ferry's house to the place of the accident was not directly testified to, but some circumstances in evidence indicated that these places were some miles apart.
As neither the testimony of these witnesses nor their records were themselves incompetent, the question is whether the evidence offered, at least as to the evening of the accident, was of such a character and presented such variations of time, place or other circumstances as to make its admission a subject for the exercise of judicial discretion rather than one of legal right.
It is matter of common knowledge that weather conditions are variable both in place and time; and it has been said that this is especially true of the climate of New England. Rain or snow may be falling in any one part of a...
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