Lydon v. Boston Elevated Ry.
| Decision Date | 28 May 1941 |
| Citation | 309 Mass. 205,34 N.E.2d 642 |
| Parties | MARGARET M. LYDON, administratrix, v. BOSTON ELEVATED RAILWAY COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
April 9, 1941.
Present: FIELD, C.
J., LUMMUS, QUA DOLAN, & COX, JJ.
Negligence, Street railway: pedestrian; Contributory; In use of way. Evidence Presumptions and burden of proof, Interrogatories, Death certificate. Proximate Cause.
Testimony of an employee of the defendant, called by the plaintiff, which although in many respects self-contradictory, contradicted portions of answers by the defendant, unfavorable to the plaintiff, to interrogatories introduced in evidence by the plaintiff, warranted disbelief of such portions and, with other evidence, warranted a finding favorable to the plaintiff.
A finding of negligence of the motorman of a street car was warranted by evidence showing that he failed seasonably to slacken the speed of the car upon seeing a pedestrian about to cross the tracks, whereby the pedestrian was struck by the car.
Evidence did not require a finding that a pedestrian, struck while attempting to cross street railway tracks when a car was approaching either failed to look to see whether a car was approaching or looked carelessly or was otherwise guilty of contributory negligence.
A death certificate and a "medical-legal" diagnosis by the medical examiner containing recitals of "multiple injuries including fractured skull" and
"alcohol" or "alcoholism," with a hospital record and diagnosis containing no reference to alcohol, did not preclude findings that the proximate cause of the death was the injuries and that alcohol was merely a condition.
TORT. Writ in the Superior Court dated December 9, 1936. At the trial before Williams, J., a verdict for the plaintiff in the sum of $6,800 was recorded.
D. L. Allison, (F.
W. Ziniti with him,) for the plaintiff.
J. E. Hannigan, (E.
M. McMahon with him,) for the defendant.
The jury returned a verdict for the plaintiff on the death count in the declaration (G. L. [Ter. Ed.] c. 229, Section 3), the count for conscious suffering having been waived. Under leave reserved the trial judge allowed the defendant's motion for entry of verdict, and the plaintiff's exception to this allowance presents the only question.
It is undisputed that at about 5:41 in the afternoon of November 16, 1936, the plaintiff's intestate, as he was crossing Dorchester Street in South Boston from north to south, was struck by the front left hand corner of one of the defendant's street cars when he was "practically across the further inbound rail." The night was clear and, apart from some question whether there might have been leaves on the track, the highway and rails were dry.
The plaintiff introduced in evidence certain interrogatories propounded by her, and the defendant's answers thereto. Apart from the disclosure by these answers as to what happened, to which reference will be made later, the only witness who testified as to the movements of the deceased was the operator of the defendant's car, who was called as a witness by the plaintiff. The defendant contends, in the circumstances, that the plaintiff is bound by the answers to the interrogatories, and also by the testimony of the operator.
It is the general rule that a party is not bound by the testimony of witnesses that he calls. In Commonwealth v. McNeese, 156 Mass. 231 , 232, Holmes, J., said: Compare Harding v. Brooks. 5 Pick. 244, 248. It is for the jury to say whether the witnesses are entitled to credit. Giles v. Giles, 204 Mass. 383 , 385. They may disbelieve the whole or a part of a party's testimony, even where it is uncontradicted, Commonwealth v. Hyland, 155 Mass. 7 , 8; Sullivan v. Old Colony Street Railway, 200 Mass. 303 , 309; and may disbelieve a party's witnesses in toto, Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314 , 323. A party by calling witnesses does not necessarily become bound by their testimony, Haun v. LeGrand, 268 Mass. 582 , 584, see Flynn v. First National Stores Inc. 296 Mass. 521 , 522; Wolfe v. Checker Taxi Co. 299 Mass. 225 , 228; Kingsbury v. Terry, 300 Mass. 516 ,
518, inasmuch as the witnesses may be disbelieved by the jury, Salem Trust Co. v. Deery, 289 Mass. 431 , 435. The jury may discredit that part of the testimony of one that tends to exonerate him from fault, and believe only that portion tending to show negligence on his part. Clark v. C. E. Fay Co. 281 Mass. 240 , 242. The defendant relies upon a statement in Duggan v. Bay State Street Railway, 230 Mass. 370 , at page 379, where it was said: "Where from the facts which are undisputed or indisputable, or shown by evidence by which the plaintiff is bound, only one rational inference can be drawn and that an inference of contributory negligence or want of due care, then the question of due care or contributory negligence is one of law for the court and a verdict for the defendant should be directed"; and another statement in Murphy v. Boston Elevated Railway, 262 Mass. 485 , at 489: "Had the fact [of the plaintiff's intestate's contributory negligence] depended only on testimony of the defendant's witnesses, or on controverted testimony introduced by the plaintiff, we might feel that the jury would be warranted in disregarding it and that the statutory presumption might not be overcome." We do not understand, however, that these expressions change the general rule that a party is not bound by the testimony of a witness called by him.
Apart from the question whether the evidence in its material aspects was uncontradicted, undisputed or indisputable, see O'Callaghan v. Boston Elevated Railway, 249 Mass. 43 , 45; Murphy v. Boston Elevated Railway, 262 Mass. 485, 489; Boni v. Goldstein, 276 Mass. 372 , 375-376; Jackman v. O'Hara, 280 Mass. 496 , 498; Joyce v. New York, New Haven & Hartford Railroad, 301 Mass. 361 , 363-364, the defendant contends, in effect, that the evidence upon which the plaintiff must rely to establish negligence of its operator requires, as matter of law, a finding that the deceased was contributorily negligent. See Conrad v. Mazman, 287 Mass. 229 , 234; Stacy v. Dorchester Awning Co. Inc. 290 Mass. 356 , 359, 360; Engel v. Boston Ice Co. 295 Mass. 428 , 437; Brown v. Boston & Maine Railroad, 302 Mass. 90 , 92. The effect of the answers introduced by the plaintiff to interrogatories propounded to the defendant must be considered, for unless contradicted by other evidence they are binding on the plaintiff. Warren v. DeCoste, 269 Mass. 415, 419-420. Vozella v. Boston & Maine Railroad, 296 Mass. 491 , 493.
These answers state that the street car was travelling at the rate of approximately twelve miles an hour up to the time when the operator saw the deceased about twenty or twenty-five feet away; that at "that time" the operator immediately applied the emergency brake and had reduced the speed of the car to about six miles an hour at the time of the accident that the deceased was crossing the street from right to left; and that the operator rang the gong. The operator testified that he first saw the deceased about twenty feet ahead of the car, and probably two or three feet from the curbstone; that the deceased started across on a straight line, and, as the car approached him, he came toward it at an angle. The collision occurred to the west of West Sixth Street, which leads from the northerly side of Dorchester Street. The operator testified as to crossing West Sixth Street "where the buses come," and of approaching "the intersection of West Sixth and Mercer streets on the opposite side." The plan of the locus that was in evidence shows Dorchester Street to be straight for a distance of at least four hundred fifty feet easterly from the point of collision. This street has a slight grade, and is approximately fifty-five feet wide from curb to curb, and it is twenty feet from the northerly curb to the first rail of the inbound track. The operator testified that the car had stopped at West Fifth Street, three hundred thirty feet easterly from West Sixth Street, and then proceeded down Dorchester Street at a speed of about fifteen miles an hour; that he proceeded at that speed, "reducing it to about twelve miles per hour going across West Sixth Street where the buses come"; that he had a clear view in front of him after he left West Fifth Street; that his brakes were in good condition; and that he could have made an emergency stop, "having in mind the condition of the street on this night," in about seventeen feet going twelve miles an hour. Despite the answer to the interrogatory that the operator immediately applied the emergency brake when he saw the deceased about twenty or twenty-five feet away, the operator testified that he saw the deceased ahead of him twenty feet and he continued on and struck him with the front of his car, when the deceased was practically across "the further inbound rail"; that when he first saw him he was going twelve miles an hour; that he did not attempt an emergency stop at that time; that he thought he was going to "pass the man with the car"; that "he expected the man would let him pass with the car going pretty nearly twelve miles an hour, and then the man walked across with his chin on his shoulder and seemed to be walking on the sides of his feet; that when he first saw the deceased twenty feet away he did nothing to slacken the speed of the street car because he thought he could get by him; that he saw the deceased as he [the operator] was crossing West Sixth Street; that the...
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Brown v. Mass. Office on Disability
...... testimony, even where it is uncontradicted.” Calderone v. Wright, 360 Mass 174, 176 (1971), quoting from Lydon v. Boston Elev. Ry., 309 Mass. 205, 206 (1941). 4. Award of costs. We vacate the award of costs against MOD for the reasons set forth in its brief, and Brown does not argue oth......