Hicks v. H.B. Church Truck Serv. Co.

• Decision Date: 16 April 1927
• Citation: 156 N.E. 254,259 Mass. 272
• Parties: HICKS v. H. B. CHURCH TRUCK SERVICE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

259 Mass. 272

156 N.E. 254

HICKS

v.H. B. CHURCH TRUCK SERVICE CO.

Supreme Judicial Court of Massachusetts, Suffolk.

April 16, 1927.

Report from Superior Court, Suffolk County; Joseph Walsh, Judge.

Action by Mary A. Hicks, administratrix, against the H. B. Church Truck Service Company. On report after directed verdict for defendant. Verdict set aside.C. W. Lavers, of Boston, for plaintiff.

Sawyer, Hardy, Stone & Morrison, of Boston (J. M. Morrison and J. W. Coughlin, both of Boston, of counsel), for defendant.

WAIT, J.

The report states all the material evidence and submits for our decision whether certain evidence was excluded properly, and whether there was error in denying the plaintiff's motion for a directed verdict and in ordering a verdict for the defendant.

[1][2][3] The plaintiff's intestate was struck from behind by an automobile truck driven by an employee of the defendant in the course of his employment. He died two days later from the consequences of the injury. The issues presented were whether he suffered consciously, whether by lack of due care he contributed to his injury, and whether the driver of the truck was negligent. The burden of sustaining the first and last issue was on the plaintiff, and of sustaining the second was on the defendant.

[4] The rulings upon evidence in regard to declarations of the deceased are immaterial, because the testimony offered, though once excluded, was later introduced through other witnesses or on re-examination of the witness testifying at the time of the exclusion. No prejudicial error appears, therefore, and the verdict should not be disturbed upon this ground. Hendrick v. Whittemore, 105 Mass. 23, 31;Brown v. Wimpenny, 239 Mass. 278, 282, 132 N. E. 43;Bishop v. Burke, 216 Mass. 231, 233, 103 N. E. 691.

[5][6] Yet, as the questions might arise at another trial, we consider them. The plaintiff offered to show that, while lying injured after the accident in a place to which he had been taken and before he was removed to a hospital, the plaintiff's intestate said repeatedly, in a very slow and labored way, ‘I don't see how he came to hit me.’ She contended that the testimony was admissible as an exclamation of pain, as a declaration of a deceased person speaking of his own knowledge, and as tending to contradict the defendant's expected evidence that a warning horn had been blown. It manifestly is not an exclamation of pain. There was no finding by the judge that it was spoken of the decedent's own knowledge, in good faith and before action was brought. G. L. c. 233, § 65. And so it was technically inadmissible as hearsay. Murphy v. Hanright, 238 Mass. 200, 206, 130 N. E. 204;Horan v. Boston Elevated Railway, 237 Mass. 245, 129 N. E. 355. Unless convinced that no such declaration was made, the judge was fully justified in finding good faith, personal knowledge and priority to suit. The declaration thus could have been admitted under the statute. It was not inadmissible because in form a statement of opinion rather than of fact. See Eldridge v. Barton, 232 Mass. 183, 122 N. E. 272.

[7] The intestate's state of mind was material upon the issue of his due care. Moreover, the fact of speaking and the words used were admissible on the issue whether there had been consciousness and suffering after the injury. Nadeau v. Taunton, 247 Mass. 104, 106, 141 N. E. 608;Battany v. Wall, 232 Mass. 138, 122 N. E. 168.

[8] It was not admissible on the third ground stated, because hearsay is not rendered competent testimony by having evidentiary value. The evidence was hearsay; something said out of court, by one not a witness, not under oath, and not subject to cross-examination. The evidence was not offered on the ground that it was entitled to admission upon the issue of conscious suffering. The rulings can be sustained even if, on other grounds, the evidence excluded could properly have been admitted. The same reasoning applies to the ruling excluding the statement, ‘Why didn't you see me?’

No prejudicial error appears in the exclusion of the opinion of the expert, Chamberlain, in regard to the distance within which the driver should have stopped the truck. The judge may have decided that the question did not include all the elements properly to be taken into account to render the opinion competent. Taylor v. Creeley (Mass.) 152 N. E. 3.

The important questions are whether the rulings directing and refusing to direct verdicts were proper.

[9][10] In a trial to a jury, the jurors are the proper arbitors of questions of fact other than the incidental matters of fact involved in the detail of trial. It is only in rare instances that the judge can assume to decide them, and only when no other decision is legally possible on the evidence. O'Neill v. Middlesex & Boston Street Railway, 244 Mass. 511, 138 N. E. 841.

The trial judge, like the appellate court, must consider that the jurors can give to contradictory evidence the construction most favorable to the party upon whom the burden of proof rests, and may refuse credit to evidence which he (often with greater experience and impartiality) regards as truthful and...