Guinan v. Boston Elevated Ry. Co.

• Decision Date: 05 June 1929
• Citation: 167 N.E. 247,267 Mass. 526
• Parties: GUINAN v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

267 Mass. 526

167 N.E. 247

GUINAN

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 5, 1929.

Report from Superior Court, Suffolk County; Williams, Judge.

Action by Madeline F. Guinan against the Boston Elevated Railway Company. Verdict for defendant. On report. Judgment on the verdict.

G. Alpert, and F. D. Harrigan, both of Boston (J. P. Feeney, of Boston, of counsel), for plaintiff.

Harold F. Hathaway and John T. Hughes, both of Boston, for defendant.

CROSBY, J.

This is an action to recover for personal injuries received by the plaintiff while a passenger on one of the defendant's cars, which resulted from the same explosion as is considered in Guinan v. Famous Players-Lasky Corporation (Mass.) 167 N. E. 235, decided this day. The cases were tried together and the jury returned a verdict for the railway company. The case is before us on a report of the trial judge, and presents a single question relating to evidence.

There was evidence that the plaintiff was a passenger on the car; that one Shirley boarded the car at Pleasant street in Boston carrying with him a burlap bag containing scrap moving picture film; that he placed the bag at a distance from the heating apparatus in the car that varied with the testimony of the different witnesses, some testifying that the bag touched the heater, and others that it was from one to two feet from it. One Galvin, a passenger on the car, testified that as it proceeded from Boylston street toward Park street in the subway ‘a flash of flame came out of the heater in the car and the burlap bag became ignited; that the flash of flame came from the heater to the burlap bag; that then the flames burst out all over the street car. * * *’ An electrical engineer and employee of the defendant testified as to the construction of the heater, and the mechanical and electrical devices which permitted electrical energy to heat the car through its operation.

One Hewitt, called by the plaintiff, qualified as an expert on the heater in question, ‘but, having no expert knowledge of films,’ the trial judge refused to permit him to testify. The plaintiff excepted to this ruling.

[2] The rule is well established that whether a person called as an expert has the necessary qualifications to testify is a preliminary question to be decided by the trial judge, and his decision is conclusive, unless it appears on the evidence to have been erroneous as matter of law. Perkins v. Stickney, 132 Mass. 217, 218;White v. McPherson, 183 Mass. 533, 534, 67 N. E. 643;Old Silver Beach Corp. v. Town of Falmouth (Mass.) 165 N. E. 1. In dealing with evidence of this character it was said by Chief Justice Shaw in New England Glass Co. v. Lovell, 7 Cush. 319, at page 321: ‘It is not because a man has a reputation for superior sagacity, and judgment and power of reasoning,...