Jones v. Boston & N. St. Ry.

• Decision Date: 22 May 1912
• Citation: 211 Mass. 552,98 N.E. 506
• Parties: JONES v. BOSTON & N. ST. RY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

211 Mass. 552

98 N.E. 506

JONES v. BOSTON & N. ST. RY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1912

COUNSEL

Coakley & Sherman and Roland H. Sherman, all of Boston, for plaintiff.

Henry F. Hurlburt, Damon E. Hall, and Philip N. Jones, all of Boston, for defendant.

OPINION

HAMMOND J.

The presiding justice was not obliged to select any portion of the evidence introduced by the plaintiff whether given by one witness or more, and rule upon its effect independently of the other evidence bearing upon the same issue; and therefore there was no error of law in refusing the first four rulings requested by the defendant.

The counsel for the plaintiff in his closing argument declared that the defendant had not produced certain witnesses whose names he argued were on certain slips of paper in the possession of the Boston Elevated Railway, and he argued that the failure of the defendant to produce them was evidence for the jury to consider. His language on this subject was as follows: 'Now let us see what else. They got the names of three witnesses. Well, you can't complain about that. What else could they do? The starter for the Boston Elevated Road took the names of the witnesses to that accident on slips of paper and sent them to the Boston Elevated Claim Department, the said department where this heel was sent. And there is, on the testimony in this case, in the office of the Boston Elevated Railroad, that bitter enemy of the Boston & Northern, as my friend would have you believe, a report of this accident from the starter in that station, with the names of witnesses which he took at that time and which my friend you know had access to so he could go and get a copy of the report. Where are those witnesses? Where are those witnesses that were on the slips that were sent to the Boston Elevated Railroad? Of course, they knew and found out who the witnesses were. Why my friend goes out of his way all over the country to bring in witnesses of all kinds and descriptions so that it has taken three days to try this case, and the important witnesses whose names are on that report, he don't dare to bring into this court room,--way? Well, there is only one reason; if those witnesses whose names were taken would say that they were there and saw that car at a standstill and that the car never started and moved a foot or an inch, those witnesses would be here, gentlemen, and you have a right to say, and it is reasonable and probable for you to say that the reason he don't bring those witnesses here whose names were taken is because they would substantiate the story of this plaintiff and they would say that this car moved and that is what caused her to be thrown back. That is the reason why they are not here.'

At the close of the plaintiff's argument the defendant requested the court to instruct...