Lang v. Boston Elevated Ry. Co.

Decision Date20 May 1912
Citation98 N.E. 580,211 Mass. 492
PartiesLANG v. BOSTON ELEVATED RY. CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Chas. Toye and Jas. H Baldwin, both of Boston, for plaintiff.

Frederick Manley Ives, of Boston, for defendant.

OPINION

HAMMOND J.

One of the questions was whether in the circumstances of the collision between the plaintiff and the defendant's car the motorman was negligent. That was to be determined by his acts either of commission or omission. Upon the questions what those acts were and whether they or any of them were negligent, the length of time he had been in the defendant's employ as a motorman and the nature and amount of his instructions were entirely immaterial and the evidence upon those matters was wrongly admitted. The defendant seasonably excepted to its admission. It is suggested by the plaintiff that putting an inexperienced or incompetent person in the position of a motorman might be of itself evidence of the defendant's negligence. But unless there was evidence of negligence in the conduct of the motorman the negligence of the defendant in employing him did not contribute to the accident and therefore was immaterial.

It is further argued by the plaintiff that the error, if any, was corrected by the words of the presiding justice to the jury. It appears that after the evidence had been admitted and during the further cross-examination of the motorman by the plaintiff, the presiding justice remarked to the jury upon the bearing of the evidence as follows: 'The company was represented by the motorman so far as the running of the car under the direction of the conductor. Now if the motorman was not careless, not lacking in due care, it is not of the slightest importance how many days had intervened since he had ceased receiving instructions from an inspector, or whatever may be the name of the official that accompanied him and gave him instructions, whether a day or a year. If he was not careless, it is certainly of no importance. But I have let the evidence in as to how long he had been there, and it may or may not throw a little light upon the question of whether or not he was in the exercise of due care. It may or may not. If it does not, that is the end of it. If he was careful it makes no difference. I only mention this to you so that you will understand the purport of the evidence as it proceeds.' In his final charge at the close of the case he...

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