Kelley v. City of Boston

• Decision Date: 26 January 1937
• Citation: 296 Mass. 463,6 N.E.2d 371
• Parties: KELLEY v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

296 Mass. 463

6 N.E.2d 371

KELLEY

v.CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 26, 1937

Exceptions from Superior Court, Suffolk County; Dowd, Judge.

Action of tort by Josephine Kelley against City of Boston. Verdict for plaintiff in the sum of $3,500 in superior court, and defendant saves exceptions.

Exceptions overruled.W. G. Reed and J. H. Dooley, both of Boston, for plaintiff.

W. F. Henneberry, Asst. Corp. Counsel, of Boston, for defendant.

LUMMUS, Justice.

The plaintiff obtained a verdict in an action under G. L. (Ter.Ed.) c. 84, § 15, for bodily injury sustained on Monday, June 1, 1931, by catching her heel in a hole while crossing a public way in Boston called Washington Street, near the corner of Summer Street, which hole was a little more than four inches in width and in depth. The case comes here on exceptions taken by the defendant.

The only evidence that the hole existed a substantial time before the accident came from the plaintiff's son, who testified that on the Tuesday preceding the injury he saw the hole after he had left the men's store of Jordan Marsh Company by a door which he said was located at the very corner of Washington and Summer Streets. He then answered ‘Yes' to the following questions on cross-examination: ‘You are as positive that you came out of that door as you are that you saw the hole in the street into which your mother fell?’ and ‘That is the way you want to leave your testimony, is it?’ The defendant introduced evidence that there is no such door at the corner of the two streets. The defendant, at the end of the evidence, requested the judge to instruct the jury ‘that if the jury finds as a fact that there is no corner entrance to the Jordan Marsh Men's Store, then they must find as a fact that witness Edwin Kelley [the son] did not see a hole in the highway on Washington Street, near Summer Street, on the Tuesday previous to the date of the plaintiff's injuries and, therefore, must return a verdict for the defendant.’ This request was refused, and the defendant contends that it excepted.

Questions such as were asked the son are sometimes put on cross-examination. But they are seldom tolerated. They require a witness to undertake the almost impossible task of comparing the strength of his belief in two unrelated propositions of fact. The witness asserts his belief, to some degree at least, in both. The jury may find one true, and the other untrue, regardless of the comparative intensity of his belief in them. Their appraisal governs, and his is really immaterial and beside the point. See Weir's Case, 252 Mass. 236, 238, 147 N.E. 561;Ducharme v. Holyoke Street Railway, 203 Mass. 384, 397, 89 N.E. 561;Kelley v. Jordan Marsh Co., 278 Mass. 101, 109, 179 N.E. 299. The proposition that the jury must find that the son saw no hole if they find him in error as to the location of the door, is absurd. If the witness had declared himself as sure of the location of the door as he was of the existence of the store or the street, the argument of the defendant, if sound, would preclude the jury from finding that there was any such store or street.

It was apparent from the crossexamination of the plaintiff's son that the defendant contended that his testimony that he saw the hole on the Tuesday before the injury was a recent invention. Under these circumstances it was not error to allow the son to testify that on the evening of the day of the accident he told the attorney for his mother that he had seen the hole on the Tuesday before. The defendant argues that the son should not have been allowed to testify that on the Tuesday before he was buying underclothing on the credit of a certain clergyman; but no exception to this appears to have been taken. The charge slip for the underclothing, given by the Jordan Marsh Company and dated the Tuesday before the injury, was offered in evidence, and counsel for the defendant said, ‘I don't raise any question as to the identity of the slip but I object to the evidence.’ The slip was admitted merely for the purpose of fixing the date of the visit on which the son saw the hole, and the defendant excepted. Any hearsay character in the slip or in its date was not relied on by the defendant. Under the circumstances there was no error in the admission of the statements and the slip in question. Walsh v. Wyman Lunch Co., 244 Mass. 407, 409, 138 N.E. 389;Nelson v. Hamlin, 258 Mass. 331, 341, 155 N.E. 18;Commonwealth v. Kosior, 280 Mass. 418, 421, 182 N.E. 852.

An attorney who prepared the case for the plaintiff testified that on the evening of the day of the injury he went to the place with the plaintiff's son and saw the hole. On cross-examination he testified that he did not have photographs taken. He was asked whether the reason was not because there was no defect in the highway, and to this an answer of ‘Yes' or ‘No’ was demanded, which the witness said he was unable to give. On redirect examination he was allowed to testify that he instructed a photographer to take photographs of the place, but the photographer declined to take them until Sunday, because of danger from heavy traffic, and then the photographer reported that on Sunday there was no hole aothough patches appeared on the surface of the highway. The photographer testified to the facts reported by him to the attorney, whom he corroborated. This...