Minihan v. Boston Elevated Ry. Co.

• Decision Date: 26 February 1908
• Citation: 197 Mass. 367,83 N.E. 871
• Parties: MINIHAN v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 367

83 N.E. 871

MINIHAN v. BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1908

COUNSEL

James E. Cotter, for plaintiff.

Sanford H. E. Freund and William G. Thompson, for defendant.

OPINION

LORING J.

1.The refusal of the president of the defendant railway company to answer interrogatories 4, 5, 6 and 7 was the assertion of a right based on a question of law.

It happened that he was right in his refusal to answer these interrogatories; that is to say, he was right on the question of law raised by him.The plaintiff did not declare on negligence in employing an incompetent conductor or motorman and for that reason these interrogatories were not material.

But the fact that the president of the defendant company was right is of no consequence in this connection.Right or wrong, his refusal to answer an interrogatory based on a question of law was a matter for the court and for the court alone; it was not a matter for the consideration of the jury, much less was it a matter from which the jury ought to have been allowed to draw an inference of fact.It is the right of either party to an action in court to raise any question of law he may deem wise.In case he does so the sole question is whether the point of law is well taken.That (as we have said) is a question for the court and for the court alone.It is for this reason that the practice has obtained of arguing questions of law in the absence of the jury when the discussion in their presence would be apt to mislead them in determining the issues of fact to be decided by them.

The exceptions taken to the ruling allowing the plaintiff's counsel to read to the jury the refusal by the defendant's president to answer interrogatories 4, 5, 6 and 7, were not waived by the argument to the jury made by counsel for the defendant.After the refusal of the defendant's president to answer these interrogatories had been read to the jury as evidence for their consideration there was nothing left for counsel to do but to argue the case on the evidence which had been admitted.

These exceptions must be sustained.

2.The exceptions taken to the refusal to give the ninth, tenth, and eleventh rulings asked for must be overruled.

The defendant's contention here is that by putting in evidence the answers of the defendant's president to interrogatories 10 and 11 the plaintiff's case must be taken to admit that the car was in good condition; and if the car was in good condition there is a partial explanation, and for that reason the rule of res ipsa loquitur does not apply.If there had been a binding admission by the plaintiff that the car was in good condition the effect of the rule of res ipsa loquitur would not have been lessened.

What is meant by the statement that res ipsa loquitur applies where there is no explanation by the defendant(Feital v Middlesex Railroad,109 Mass. 398, 12 Am. Rep. 720;Savage v. Marlborough Street Railway,186 Mass. 203, 71 N.E. 531;Hebblethwaite v. Old Colony Street Railway,192 Mass. 295, 78 N.E. 477) is that this rule...