McCooe v. Dighton, S. & S. St. Ry. Co.

• Decision Date: 06 March 1899
• Citation: 53 N.E. 133,173 Mass. 117
• Parties: McCOOE v. DIGHTON, S. & S. ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 117

53 N.E. 133

McCOOE v. DIGHTON, S. & S. ST. RY. CO.

Supreme Judicial Court of Massachusetts, Bristol.

March 6, 1899

COUNSEL

J.W. Cummings and E. Higginson, for plaintiff.

H.M Knowlton and F.S. Hall, for defendant.

OPINION

HOLMES J.

This is an action for personal injuries caused by a collision between two electric cars, upon one of which the plaintiff was a motorman. The defense was that the plaintiff and the conductor of his car were acting against orders in not having waited for the other car at a turnout, where they should have met it at 7 o'clock. Evidence was offered that the plaintiff's car left this turnout before 7. On the other side, the conductor of the plaintiff's car testified that he started 9 or 10 minutes late, and did not leave the turnout until 5 minutes after 7. The running time from the starting point to the turnout was about 10 minutes. Upon cross-examination it appeared that the conductor had signed a report giving the starting time on that day as 10 minutes before 7, and he explained the discrepancy with his testimony by his having signed the report before he started on his first trip, at a little after 5. Upon redirect examination the plaintiff offered to show that filling up the reports beforehand was common, and that the practice was known to the superintendent. This evidence was rejected, and the plaintiff excepted.

The exception must be overruled. The witness could not carry his testimony higher than to state what, as he said, he remembered specifically concerning the particular occasion. That was final, if believed. It was a matter of discretion whether and how far the court should allow the witness to give further testimony, also depending, of course upon his truthfulness, in order to render credible a statement which, if he was truthful, was enough in itself. Com. v. Bishop, 165 Mass. 148, 152, 42 N.E. 563; Peabody v. Knapp, 153 Mass. 242, 245, 26 N.E. 696; Delano v. Trustees, 138 Mass. 63; Ashley v Wolcott, 11 Cush. 192, 196.

The plaintiff alleged that the accident was due to a defective brake. The defendant called the lawyer who sent the statutory notice of the plaintiff's accident, and asked him whether, in the interview between him and the plaintiff following which the notice was sent, anything was said about the brake being out of repair. The counsel for the plaintiff objected to testimony concerning confidential communications of a client. The court required the plaintiff to state in person whether he objected. Thereupon an exception was taken to this requirement, and then, by advice of counsel, the plaintiff gave the lawyer leave to tell everything, and the latter testified that the plaintiff said nothing about a brake being out of repair, but said that the rails were wet and slippery, etc. We should not like to overrule this exception on the ground that it was waived by the plaintiff's waiver of his privilege; for, if the court was wrong in requiring a personal expression from the plaintiff, then the waiver was made to avoid an inference which was dangerous to his...