De Forge v. New York, N.H. & H.R.R.

• Decision Date: 28 February 1901
• Citation: 178 Mass. 59,59 N.E. 669
• Parties: DE FORGE v. NEW YORK, N. H. & H. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

178 Mass. 59

59 N.E. 669

DE FORGE

v.NEW YORK, N. H. & H. R. R.

Supreme Judicial Court of Massachusetts, Hampden.

Feb. 28, 1901.

Exceptions from superior court, Hampden county; Elisha B. Maynard, Judge.

Action for personal injuries by Alfred De Forge against the New York, New Haven & Hartford Railroad. There was a judgment for plaintiff, and defendant brings exceptions. Sustained.J. B. Carroll and W. M. McClintock, for plaintiff.

Walter S. Robinson, for defendant.

LATHROP, J.

The first question in this case is whether the notice required by St. 1887, c. 270, § 3, was given to the defendant. The statute requires that it is to be ‘given to the employer.’ The person to whom the notice was given was the freight agent of the defendant in Springfield. He testified that he sent it to William E. Barnett, the attorney for the defendant in New Haven; that he so sent it in pursuance of general printed instructions directing him to send such notices as pertained to Barnett's department, and that he had received such notices for five years. We do not think it necessary to determine whether it would have been enough to show merely a notice given to a freight agent or to an attorney of the defendant, but when it appeared that the practice of giving notices in this way had been going on for so long a time without, so far as appears, any objection being made, it might well be found that the defendant had recognized and acquiesced in the practice. See McCabe v. City of Cambridge, 134 Mass. 484;Shea v. Railroad Co., 173 Mass. 177, 53 N. E. 396. This exception is therefore overruled.

The remaining question relates to the exclusion of evidence offered by the defendant. As a result of the accident the plaintiff's left foot was injured, and the principal inquiry at the trial was as to the extent of the injury. The plaintiff put in evidence X-ray pictures of the plaintiff's two feet, printed from a glass plate. Each of the pictures was marked under the toes of each foot ‘left’ and ‘right,’ respectively, both words being in lead pencil. One of the plaintiff's witnesses explained that the representation of the foot with the word ‘left’ below it was the left foot, and represented the injured foot; and the other, marked ‘right,’ was the right foot. He then testified that there had been a dislocation of the bones upward, and that an enlargement of the bone of the foot marked ‘left’ in the picture was, in his opinion, the result of fracture, and that the man would always have a weak foot, and would not be able to perform the duties of a freight brakeman. On cross-examination he testified that, leaving out the question of fracture, there was no reason why the plaintiff could not have a perfectly useful foot; and that, leaving the pictures out, there was nothing to the eye to disclose any fractures, although he had suspicions as to a fracture. The defendant contended, and offered to show, that the X-ray placed the right foot upon the right side of the plate, and the left foot upon the left side of the plate, and that in printing sensitized paper the objects would be reversed; and that, as matter of fact, the pictures showing an enlargement were pictures of the right foot, instead of the left. This evidence was excluded. Immediately before this the defendant had offered the glass plate from which the plaintiff's pictures were taken, and this was excluded. Subsequently other pictures printed from the same plate were offered in evidence, and were excluded. No reason appears in the exceptions why the evidence offered by the defendant was excluded, and we can see no reason why the plate from which the pictures put in evidence by the plaintiff were printed should not have been admitted. It was produced by the photographer who made the pictures. The ground urged by the plaintiff against its admission was that it had on it the letters ‘R’ and ‘L,’ which had been put on since the pictures put in evidence by the plaintiff had been printed. These letters did not in any way obscure the portion of the left foot in controversy, and were certainly no more objectionable than the letters added in pencil to the plaintiff's pictures.

It is further contended by the plaintiff that there was some doubt as to the manner in which the plate was made, and that the judge might have excluded it for that reason. We see nothing in the exceptions to substantiate this claim. If it were true, then the plaintiff's pictures should not have been admitted. It is entirely clear from the testimony that the picture on the glass plate was not taken by a lens, but by an X-ray machine; and that it was the impression of a shadow, not a reflection of an object; the plate being below the feet, and the light above them. When pictures were printed from the plate, the position of the feet would be reversed; and this would have been demonstrated had the plate and the pictures taken by the defendant been admitted. The plaintiff assumed from his marking on the pictures admitted that the feet as represented on the plate were reversed, which is not in accordance with the testimony given by his own witnesses as to the manner in which the impressions on the plate were produced.

Lastly, it is asserted that the judge might have...