Mcmahon v. Lynn & B.R. Co.

Decision Date03 April 1906
Citation191 Mass. 295,77 N.E. 826
PartiesMcMAHON v. LYNN & B. R. CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Elder & Whitman and Frank E. Bradbury, for plaintiff.

BenJ. B. Dewing and Saml. R. Cutler, for defendant.



This is an action brought to recover damages for personal injuries to the plaintiff, which he alleges were caused by the negligence of the defendant. His claim is that the defendant negligently piled up and maintained a ridge of snow in the space between its tracks on Beach street in the town of Revere, and that while the plaintiff was driving along that street on the 10th day of February, 1895, and turning, as he had proper occasion to do, from one track to the other, his sleigh slid down the ridge, and was overturned, and he was injured. There was evidence at the trial in the superior court that the snow was piled quite high between the outer rails of each one of the defendant's tracks and each sidewalk, so that it was practically necessary to drive over the railway tracks; that there was a ridge of hard snow between the two lines of tracks, some 10 or 12 inches high in the middle and sloping down to two or three inches in height next to the tracks. The plaintiff was driving on the north or righthand track, and crossed over to the south track to let a car which came up from behind pass him. Then he turned to the north side again and in crossing his runners slipped on the ridge between the tracks, overturning the sleigh and throwing him out.

At the request of the defendant the jury were taken to view the place of the accident and a snow plow which the defendant's counsel said he would point out to them. In an opening statement to the jury, evidently made before that view, the defendant's counsel said to them that they would see a certain snow plow which was either the same one used by this defendant on Beach street at the time of the accident or one of three plows then used by it, all alike; and he asked the jurors to pay particular attention to the shears underneath the plow and the length of the wings on the sides, and said that it would appear that it would be impossible for the snow to be heaped up between the tracks by the operation of the snow plow. Such a snow plow was shown by this defendant to the jury, and was seen by them, and its different parts were pointed out to them. The judge had not directed the jury to view anything else; but against the objection of the defendant the plaintiff's counsel called the attention of the jury to the small wings, being two small scrapers, on a passenger car of the defendant which was then in the car barn. These scrapers he argued were used to remove snow from the tracks themselves. There was no evidence showing to what cars these scrapers were attached, or how long they had been used. Both the counsel for the plaintiff and the counsel for the defendant referred to the view in their arguments.

The trial of this case was begun with that of another case against the town of Revere, for the same accident. At the end of the plaintiff's case, this defendant rested, and a verdict was ordered by consent for the defendant in the case against the town of Revere.

The view was manifestly somewhat irregularly conducted. It is probable that the judge would have prevented the jury from drawing any inferences against the defendant by reason of the scrapers to which their attention had been drawn, and would have ruled that their presence on the car could not be considered by the jury, if the defendant had called his attention to the matter; but this does not appear to have been done, and the irregularity cannot now be made a ground for setting aside the verdict. But we think that what was said by the defendant's counsel in his opening statement to the jury before the view might properly be regarded as an admission by him that the defendant had used the snow plow which he showed to them, in removing snow from these tracks, though the admission was coupled with the claim that its use could not have heaped up a ridge of snow between the tracks. The defendant claims that this opening statement was made by counsel for the defendant in the other case; but it was stated at the argument in this court that both defendants were represented by the same counsel, and it does not appear that the distinction now claimed was then insisted upon, or that it was so understood either by the judge or the plaintiff's counsel. And while it is true that statements made by the defendant's counsel in opening are not to be received as evidence, this principle does not prevent them from having binding force as admissions. Com. v. Desmond, 5 Gray, 80. Lewis v. Sumner, 13 Metc. 269. And for a similar reason we think that the jury had a right to consider against the defendant the parts of the snow plow which were pointed out to them by the defendant's counsel at the view.

It has been said that the judge presiding at a trial may properly rule upon the effect of the evidence and order a verdict although the jury have taken a view, if it does not appear that the jury could have acquired from the view the knowledge of any material facts which were not put in evidence in court. Tully v. Fitchburg Railroad, 134 Mass. 499; Rigg v. Boston, Revere Beach & Lynn Railroad, 158 Mass. 309, 33 N.E. 512; Williams v. Citizens' Electric Street Railway, 184 Mass. 437, 68 N.E. 840. It is true that usually, except in cases in which the jury are to pass upon the money value of what they see, 'a view is allowed for the purpose of enabling the jury better to understand and apply the evidence which is given in court but it is not necessarily limited to this; and in most cases of view a jury must of necessity acquire a certain amount of information, which they may properly treat as evidence in the case.' Colburn, J., in Tully v. Fitchburg Railroad, ubi supra. And in Hanks v. Boston & Albany Railroad, 147 Mass. 495, 499, 18 N.E. 218, 220, a case somewhat similar to this, Devens, J., said that it must be observed that the jury might have been 'materially aided by a view of the locality.' And in Smith v. Morse, 148 Mass. 408, 410, 19 N.E. 393, 394, Holmes, J., says that what the jury see at a view 'is evidence in the case.' The defendant's counsel had told the jury before the view that this plow was either the same plow which this defendant had used at the place and time of the accident or was exactly like that plow; he had invited their attention to the shears underneath the plow and to the wings on the sides; and then he pointed out those parts to them on the view. We do not see how the fact that the defendant afterwards chose to rest its case upon the plaintiff's evidence, and did not put in the evidence which it had stated it would offer to show that by the operation of the plow it would be impossible for the snow to be heaped up between the tracks, could prevent the jury from considering not only what they had thus been told by the counsel for the defendant, but what he had pointed out to them. And it follows that that part of the exceptions which was inserted in the bill against the objection of the defendant was rightly so inserted. The bill purports to contain all the evidence; and it would not have contained all the evidence if this had been omitted. Moreover the fact stated in the exceptions, that both the plaintiff's and the defendant's counsel referred to the view in their arguments, would indicate that both parties were then of the same opinion as to this matter which we have now stated, and that this position was acquiesced in by the judge. At any...

To continue reading

Request your trial
1 cases
  • Mcmahon v. Lynn & B.R. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 3, 1906
    ...191 Mass. 29577 N.E. 826McMAHONv.LYNN & B. R. CO.Supreme Judicial Court of Massachusetts, Suffolk.April 3, Exceptions from Superior Court, Suffolk County; Wm. Schofield, Judge. Action by one McMahon against the Lynn & Boston Railroad Company. Judgment in favor of plaintiff, and defendant br......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT