Keefe v. Norfolk Suburban St. Ry. Co.

• Decision Date: 27 February 1904
• Citation: 70 N.E. 46,185 Mass. 247
• Parties: KEEFE v. NORFOLK SUBURBAN ST. RY. CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 247

70 N.E. 46

KEEFE v. NORFOLK SUBURBAN ST. RY. CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1904

COUNSEL

James E. Cotter and Thomas F. McAnarney, for plaintiff.

Henry F. Hurlburt and Damon E. Hall, for defendant.

OPINION

HAMMOND J.

1. We think no error of law appears in the admission of the statements made to the plaintiff by McAloon in the same conversation in which she alleges she was fraudulently induced to sign the release, although they were made after she had signed it. While it may be true that they could not have formed any part of the statements which induced her to sign, yet they were a part of the conversation during which the paper was signed, and had a bearing, at least, upon her good faith in pressing the claim of fraud, and to meet the argument likely to be made by the defendant that this claim was an afterthought on her part. It is argued by the defendant that this part of the plaintiff's testimony was not responsive to the question put to her. It was certainly responsive to the question as originally put, and the colloquy between the two counsel does not show that her counsel ever withdrew that question; but, however that may be, the point that the answer was not responsive to the question was not then taken by the defendant, and it is manifest that the court understood, and properly, that the objection of the defendant was based solely upon the ground that the testimony was not admissible. The objection that it was not responsive cannot now be of avail to the defendant.

2. At the time of the trial the plaintiff was 39 years and 11 months old, and her contention was that, if she should reach her climacteric before she had fully recovered, her suffering might be prolonged as one of the results of the accident. The defendant contended that upon the evidence the possibility that the plaintiff would reach her climacteric before her full recovery from the accident was so remote that it should not be considered by the jury as an element of damage, and at the close of the evidence asked the court so to rule. The court declined to rule as requested, and submitted this question to the jury, with instructions to which we do not understand the defendant to object, except so far as inconsistent with the ruling requested. While the evidence tended to show that the average age of married women at the time of the climacteric is about 45 or 46 years,...