Griffin v. City of Boston

• Decision Date: 22 June 1905
• Citation: 74 N.E. 687,188 Mass. 475
• Parties: GRIFFIN v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 475

74 N.E. 687

GRIFFIN v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 22, 1905

COUNSEL

Jas. E. Cotter, Gerald A. Healy, and Jos P. Fagan, for plaintiff.

Arthur L. Spring, for defendant.

OPINION

LATHROP, J.

When this case was last before us, it was upon a ruling of the judge of the superior court that, on the plaintiff's evidence, he was not entitled to recover. We were of opinion that there was evidence for the jury. Griffin v Boston, 182 Mass. 409, 65 N.E. 811. At the new trial the jury returned a verdict for the defendant, and the case comes before us on the plaintiff's exceptions.

The plaintiff's case rests upon his being a traveler on the highway on November 4, 1897, and being struck on the head by the handle of a truck on which a gravel heater rested, the handle being insecurely fastened in a vertical position by a piece of rotten wire; and there was evidence that the truck had remained in that position for a week before the accident. The plaintiff was a boy about eight years old at the time of the accident. The defendant's evidence tended to show that the plaintiff was not a traveler on the highway; that he was playing in the street at or near the heater just before he was hurt; that when he met with the injury he was in the act of climbing up the handle of the heater, and the wire broke, and the handle and the boy fell to the stone pavement causing the injuries complained of. The defendant called as a witness one Herbert O'Reilly who testified that at the time of the trial, October 5, 1903, he was 13 years old; that he knew the plaintiff when he was hurt; that the witness was playing around the heater. When asked 'What did you see happen while you were playing?' He answered, 'Dannie [the plaintiff] was going--shinning up the pole--and the wire broke, and he fell down.' The witness was then cross-examined at length. Later on in the trial the defendant called one Devitt, a lieutenant of police. He testified that he had been detailed to serve the committee on claims of the defendant city, and that it was his duty, with his associates, to investigate claims against the city, after notice was received; that he investigated this case, and had in his possession his original notes; that he saw the boy O'Reilly, who told him that the plaintiff was 'swinging on the handle, and the wire broke, and it fell and he fell.' This evidence was admitted subject to the plaintiff's exception. On this matter the judge instructed the jury as follows: 'It was suggested to you in the course of the argument that, while the statement which one of the boys had given to the officer was read in your presence, the other statements were not read; and perhaps, in view of that statement, I ought to say what the rights of counsel are with regard to the introduction of statements in those cases--when they are admissible and when they are not. A witness, in the first instance, is called upon to state what occurred at a particular time. If that is all there is to the case, his counsel who calls him is not permitted to bring in other testimony--that he said the same thing shortly after the accident--for the purpose of corroborating the statement of the witness on the stand. That is not permissible in the way of corroboration, and therefore ordinarily, when a witness has testified what occurred a number of years ago, if he has made a statement, and it appears he made a statement, and made one shortly after the accident, that cannot be admitted in evidence. But there is...