Horan v. Boston Elevated Ry. Co.

• Decision Date: 07 January 1921
• Parties: HORAN v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 245

129 N.E. 355

HORAN

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 7, 1921.

Exceptions from Superior Court, Middlesex County; Loranus E. Hitchcock, Judge.

Action by Gertrude E. Horan, by next friend, against the Boston Elevated Railway Company. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

Edward J. Flynn, of Boston, for plaintiff.

Pitt F. Drew and John P. Carr, both of Boston, for defendant.

BRALEY, J.

It is settled under R. L. C. 175, § 66, that the declaration whether oral or in writing by a person since deceased, who if living would be a competent witness at the trial, cannot be admitted in evidence unless the presiding judge ‘finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.’ Stooker v. Foster, 178 Mass. 591, 602, 60 N. E. 407, 410;Dixon v. New England Railroad, 179 Mass. 242, 246, 60 N. E. 581;Dickinson v. Boston, 188 Mass. 595, 597, 75 N. E. 68,1 L. R. A. (N. S.) 664;Heathcote v. Eldridge, 226 Mass. 168, 115 N. E. 251;O'Driscoll v. Lynn v. Boston Railroad, 180 Mass. 187, 62 N. E. 3. And ‘this judicial action is to be inferred from the admission of the evidence itself where the exceptions fail to state that the inquiry was not made.’ Dickinson v. Boston, 188 Mass. 595, 597, 75 N. E. 68, 70 (1 L. R. A. [N. S.] 664),Heathcote v. Eldridge, 226 Mass. 168, 115 N. E. 251. The plaintiff, in describing what happened after she fell, said, ‘Mr. McCarthy, as I learned later he was, came down and he picked me up,’ and McCarthy having died his sister called by the plaintiff testified in direct examination to a conversation with her brother ‘about the plaintiff's accident on which this suit is based.’ But before narrating the conversation she was cross-examined, during which she testified, that having asked him how the plaintiff ‘got hurt’ ‘he told me she was on the car,’ and to the question, ‘That is all there is to it?’ the response was ‘Yes.’ The first question on redirect examination, ‘Now what did he tell you?’ was answered subject to the defendant's exception:

‘He told me that the car was stopped, the conductor rung the bell, the car started and the girl was thrown into the street, and that was the end of the conversation. We said nothing more about it.’

If the record closed here the admission itself of the evidence would be sufficient to support the presumption that the judge was satisfied the declaration was made in good faith and upon McCarthy's personal knowledge and before the action was begun. Marston v. Reynolds, 211 Mass. 590, 98 N. E. 601;Heathcote v. Eldridge, 226 Mass. 168, 115 N. E. 251. But a long recross-examination followed in which an attempt seems to have been made to show that the declarant did not witness the accident, and at its close defendant's counsel without stating his grounds moved to have the answer given in the redirect examination struck out. The judge rightly denied the motion, in so far as any question was raised that the answer if admitted was not relevant evidence.

It was for the jury to determine, even if the witness made inconsistent statements, whether the conversation given in redirect examination was true or should be wholly rejected. Root v. Boston Elevated Railway, 183...