Leary v. Keith
| Decision Date | 01 June 1926 |
| Citation | 256 Mass. 157,152 N.E. 245 |
| Parties | LEARY v. KEITH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; E. T. Broadhurst, Judge.
Action by John J. Leary against James C. Keith. On defendant's exceptions after a verdict for plaintiff. Exceptions overruled.
H. R. Donaghue, of Boston, for plaintiff.
H. S. Avery, of Boston, for defendant.
The plaintiff sued for damages resulting from the kick of a horse alleged to have been kept by the defendant with knowledge of his vicious habit of kicking.
The law is well settled as stated by Knowlton, C. J., citing Popplewell v. Pierce, 10 Cush. 509, in Cooper v. Cashman, 190 Mass. 75, 76 N. E. 461,3 L. R. A. (N. S.) 209:
[2] The defendant does not contest this; but he insists that where, as at the trial, the only evidence of vicious propensities in a horse and of knowledge of such vice is furnished by alleged admissions of the defendant which he denies that he ever made, there is not sufficient evidence of liability to justify the submission of the case to a jury. The contention is not well founded.
The plaintiff and his employer testified that the defendant said to them:
‘I am sorry, boy; I told them to put that horse downstairs before; you are the second man he kicked this morning;’ and ‘I told that fellow to put that horse downstairs; he was a kicking horse.’
Such an admission is evidence of knowledge of a propensity to kick, and, though less convincingly, of the existence of the habit in the horse. Its probative value is for the jury to determine. Linnehan v. Sampson, 126 Mass. 506, 30 Am. Rep. 692.
None of the cases cited by the defendant sustain his proposition that, where such an admission is uncorroborated by other evidence and is denied by the witnesses of the party charged with the admission, there is nothing on which a jury can base a finding against such party. Linnehan v. Sampson, supra; Bowditch Mutual Fire Insurance Co. v. Buffum, 2 Gray, 550;Conant v. Evans, 202 Mass. 34, 88 N. E. 438. It well may be that an admission standing alone does not contain enough to sustain a verdict; but that is because the facts stated in the admission, or justly to be inferred from it, are not sufficient to make out a case, and not because they are put before the jury in the form of an admission....
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... ... This admission was ... sufficient to justify a finding that the motor vehicle of the ... defendant struck the deceased. Leary v. Keith, 256 ... Mass. 157, 158, 152 N.E. 245. There was further evidence to ... the effect that the deceased left the home of the plaintiff ... ...
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Woronka v. Sewall
...v. Harley Private Hospital, Inc., 279 Mass. 96, 180 N.E. 723;Zimmerman v. Litvich, 297 Mass. 91, 7 N.E.2d 437. See Leary v. Keith, 256 Mass. 157, 152 N.E. 245. It is no answer to say that the statements that the negligence occurred ‘upstairs' did not show that it took place in the delivery ......
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...cleaned.' That statement warranted a finding of negligence on her part. Eldridge v. Barton, 232 Mass. 183, 122 N.E. 272; Leary v. Keith, 256 Mass. 157, 152 N.E. 245; Zimmerman v. Litvich, 297 Mass. 91, 94, 7 N.E.2d 437; Woronka v. Sewall, 320 Mass. 362, 69 N.E.2d 581; Sayles v. Sayles, 323 ......
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Com. v. Valcourt
...it, are not sufficient to make out a case; and not because they are put before the jury in the form of an admission.' Leary v. Keith, 256 Mass. 157, 158, 152 N.E. 245. Compare Credit Service Corp. v. Barker, 308 Mass. 476, 481, 33 N.E.2d We are of opinion that the answers that Reynolds made......