Hasey v. City of Boston

• Decision Date: 27 November 1917
• Citation: 228 Mass. 516
• Parties: CATHERINE HASEY v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 516

CATHERINE HASEY v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

November 27, 1917

October 19, 1917.

Present: RUGG, C J., BRALEY, DE COURCY, PIERCE, & CARROLL, JJ.

Evidence Declarations of deceased persons.

The preliminary decision of a presiding judge admitting in evidence a statement of a deceased person offered under R.L.c. 175 Section 66, is not conclusive and, where all the evidence material to the question of the admission of the statement is contained in a bill of exceptions, the action of the judge may be reviewed by this court and can be held to be wrong because unsupported by any evidence.

In an action against a city under R.L.c. 51, Section 18, for personal injuries sustained by reason of an alleged defect in a sidewalk consisting of bricks protruding two inches above the surrounding surface, where the defendant had introduced evidence that the sidewalk was in good condition and that the plaintiff slipped and fell by reason of fallen leaves collected on the sidewalk, the judge, against the plaintiff's exception, admitted under R.L.c. 175, Section 66, a statement of a deceased police officer made before the commencement of the action and taken down by shorthand, in which he said that "the leaves had fallen all over the sidewalks, and, as I understand it, she slipped on those leaves. . . . I did not hear of the accident until after the notice came. This is a brick sidewalk and the bricks are all in very good condition." The judge did not hear the shorthand notes read, nor did he have any preliminary hearing, nor make any inquiry into the statement or the manner of obtaining it, except to be told that the witness was dead and that the statement was made before suit, that the declarant was one of the police force and "was the day man on this route." Held, that the admission of the statement was erroneous because it could not have been found to have been made "upon the personal knowledge of the declarant," and the declarant, if living, would not have been allowed to testify that he "understood" that the plaintiff slipped on the leaves or to express his opinion that the bricks were

"in very good condition."

TORT under R.L.c 51, Section 18, for personal injuries alleged to have been sustained by the plaintiff on October 13, 1914, at about 8:30 A. M. from tripping and falling over some bricks protruding from the sidewalk of Moreland Street near or opposite Perrin Street in the part of Boston called Roxbury. Writ dated May 26, 1916.

In the Superior Court the case was tried before White, J. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions to the admission of certain evidence as the declaration of a deceased person under R.L.c. 175, Section 66, as described in the opinion.

J. L. Sheehan, (F.

W. Miller, Jr., with him,) for the plaintiff.

W. P. Higgins, for the defendant, submitted a brief.

PIERCE, J. This is an action of tort to recover damages for injuries received by the plaintiff on October 13, 1914, from a fall to the sidewalk while walking on Moreland Street in the city of Boston.

The testimony of the plaintiff and of her witness tended to prove that she tripped, stumbled and fell over three or four bricks projecting "about two inches" above the surrounding surface of the sidewalk in the middle of the sidewalk. The testimony of the witnesses called by the defendant tended to prove that the...