Madden v. Boston Elevated Railway Co.

• Decision Date: 29 November 1933
• Citation: 284 Mass. 490
• Parties: LORETTO W. MADDEN v. BOSTON ELEVATED RAILWAY COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 490

LORETTO W. MADDEN v. BOSTON ELEVATED RAILWAY COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

November 29, 1933

March 9, 1933.

Present: CROSBY WAIT, FIELD, DONAHUE, & LUMMUS, JJ.

Practice, Civil New trial; View; Appellate Division: request for report. Jurisdiction. Municipal Court of the City of Boston, Rule 28 (1932).

After the close of the evidence, the presentation of requests for rulings and arguments by counsel at the hearing in the Municipal Court of the

City of Boston of an action for personal injuries sustained by a passenger in a bus owned by the defendant when an axle of the bus broke, the trial judge, at the request of the defendant, took a view of the bus, at which he was accompanied by counsel and experts for both parties and at which he asked certain questions about the axle and wheel of the bus and observed demonstrations by the defendant's expert. No objection to such conduct by the judge was taken by the plaintiff at the view. The judge subsequently found for the defendant. The plaintiff filed a motion for a new trial based in part on the ground that the judge improperly heard evidence at the view. The motion was denied. Upon appeal by the plaintiff to this court from an order by the Appellate Division dismissing a report by the trial judge, it was held, that the contention as to the improper hearing of evidence at the view was not open to the plaintiff because he at that time had not objected thereto and requested a report thereof in conformity to Rule 28 of the Municipal Court of the

City of Boston (1932). It was stated that it was within the inherent power of the judge of the

Municipal Court to take the view above described at a place outside the territorial jurisdiction of the court.

It was stated that there was nothing prejudicial to the plaintiff in what occurred at the view above described.

Following a finding for the defendant at the hearing of an action for personal injuries in a municipal court, the plaintiff filed a motion for a new trial based on the ground of newly discovered evidence. At the hearing of the motion, the trial judge heard new testimony and arguments on a new theory of negligence. The motion was denied. Held, that no abuse of discretion nor error was shown in the denial.

Matters susceptible of being raised at the hearing of an action in a municipal court cannot as of right be raised for the first time at the hearing of a motion for a new trial.

CONTRACT OR TORT. Writ in the Municipal Court of the City of Boston dated November 27, 1931.

The action was heard in the Municipal Court by Brackett, J., who found for the defendant. A motion by the plaintiff for a new trial was denied. Proceedings in the Municipal Court are described in the opinion. A report to the Appellate Division was ordered dismissed. The plaintiff appealed.

B. J. Killion, (E.

Donovan with him,) for the plaintiff.

J. J. O'Hare Jr., for the defendant.

WAIT, J. The plaintiff appeals from an order of an appellate division dismissing a report. She was injured on July 13, 1931, in Malden, while a passenger on a bus owned and managed by the defendant street railway. She brought suit in the Municipal Court of the City of Boston counting upon negligence of the defendant or its servants. After the close of evidence, the presentation of requests and arguments of counsel, the trial judge, on motion of the defendant, went from Boston to the defendant's garage in Medford and there viewed the bus concerned in the accident. The garage is situated outside the territorial jurisdiction of the court. He was accompanied by counsel for the plaintiff and defendant, by the defendant's foreman who had testified at the hearing, and by one Long, called as an expert automobile mechanic by the plaintiff, who also had testified at the hearing. At the hearing there was evidence that the axle of the bus had broken somewhere inside the wheel, the left rear double wheel had rolled away, and the bus had then bumped along on the street surface for a distance of more than one hundred feet before stopping. Witnesses described the appearance of the broken axle at the point of the break.

At the view after the wheel then on the bus had been taken off and the axle exposed, the trial judge asked the foreman where the break of July 13 had occurred. The foreman indicated a point on the axle: and, in answer to the judge's question whether the wheel could have come off had the break been further in on the axle, answered "No," and demonstrated, pointing out where the drum was attached and saying, "If the break occurred inside this drum the wheel would not come off." The judge asked the foreman where the broken axle was. The foreman went away and returned with a new axle which he laid on the floor and said: "This is a new axle and just the same as the axle which broke on July 13, 1931." He said he did not know where the broken axle was and could not find it, to which the judge replied: "It is unfortunate, but I am not finding that you cannot find it on purpose." The judge asked a few further questions as to how the wheel was attached to the bus. No objection nor exception was raised or taken by either counsel at the view to the conduct of the judge; and no questions were asked by either of them.

The judge gave all rulings requested by the plaintiff; found specially: "I find as a fact that the accident was due to the breaking of an axle owing to a latent defect therein, which could not have been discovered by a most careful and thorough examination. See Ingalls v. Bills, 9 Met. 1."; and found for the defendant.

In due course, the plaintiff filed a motion for new trial assigning as reasons that the finding (1) was against the evidence, (2) was against the evidence and the weight of the evidence, (3) was against the law, and (4) resulted in a failure of justice. Later she added as reasons by amendment (5) that the court was in error and without jurisdiction to hear evidence on the view taken at Medford, and (6) upon the ground of newly discovered evidence. At the hearing she filed many requests for rulings. She called one Orcutt, an inspector of buses for the department of public utilities of the Commonwealth, who was examined at great length on direct and cross-examination and was questioned by the judge. He testified that he had examined the broken axle in the course of his duty and he described the break. His description differed from any given at the trial. In his opinion the break was due not to a latent defect but to a condition of construction and assembly of the rear axle common to all buses of the model of the bus in question, which resulted in many and frequent breaks of axles, so many and so frequent that a different...