Robinson v. Old Colony St. Ry. Co.

• Decision Date: 04 December 1905
• Citation: 76 N.E. 190,189 Mass. 594
• Parties: ROBINSON v. OLD COLONY ST. RY. CO. THOMPSON v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

189 Mass. 594

76 N.E. 190

ROBINSON

v.OLD COLONY ST. RY. CO.

THOMPSON

v.SAME.

Supreme Judicial Court of Massachusetts, Bristol.

Dec. 4, 1905.

Exceptions from Superior Court, Bristol County; John C. Crosby, Judge.

Separate actions of tort by Adelaide A. Robinson and by Frederick W. Thompson against the Old Colony Street Railway Company. There were verdicts for defendant in each case, and plaintiffs excepted. Exceptions sustained.

A. Fuller and W. J. Davison, for plaintiffs.

Frederick S. Hall and Charles C. Hagerty, for defendant.

BRALEY, J.

These actions of tort are brought for personal injuries received by a collision between a carriage in which the plaintiffs were riding and a car of the defendant, as they were about to cross the tracks of its railway in Wilbur street, in the town of Raynham. At the trial each party claimed and offered evidence that the other was guilty of negligence, and, the jury having returned verdicts for the defendant, the plaintiffs bring the cases before us on exceptions to the exclusion of certain evidence offered by them.

The motorman in charge of the car was a witness for the defendant, and on cross-examination testified that, although he had been stung on the hand, yet at the time of the accident he had one hand on the controller, and the other hand on the brake. It was important to determine his conduct; for the car, which then was running at a speed of from 10 to 12 miles and hour, was approaching an intersecting street, along which the plaintiffs were passing, and where his view of their carriage, which he had not before observed, was obstructed in part, so that, to quote his own words, ‘the first I knew of anything in regard to the accident was that a horse came out as though he came right out of a bunch of bushes at me,’ and he was obliged to apply the emergency brake. In response to a further question he denied having said that he had been stung on the hand, or that at the time of the accident he was rubbing his hand, and that he did not recollect having made any statement as to how it happened. He was then asked: ‘Don't you remember saying to Miss Robinson, in the presence of these people that were around there, that you were worry, that it was your fault, that you were rubbing your hands, as something had stung you?’ Upon objection being made, this question was properly excluded as an admission of fact by the motorman was incompetent for the purpose of proving negligence of the defendant. Cole v. New York, New Haven & Hartford Railroad Co., 174 Mass. 537, 539, 55 N. E. 1044;Bachant v. Boston & Maine Railroad, 187 Mass. 392, 396, 73 N. E. 642, and cases cited. Upon the objectionable part of the question being eliminated, the witness was asked: ‘Do you deny that you said you were rubbing your hand?’ Under the continued objection of the defendant this also was excluded, but not until the plaintiffs' counsel had clearly stated that the purpose of the examination was to impeach his testimony and discredit him as a witness by showing that he had made conflicting statements. Another question, ‘Did you say that something had stung you?’ was put for a similar purpose, and excluded.

After the redirect examination a recross-examination was irregularly allowed, to which the subject-matter of the cross-examination was again gone over, and the same inquiries were put in this form: ‘I want to ask this question again. * * * Do you deny saying anything at all at this scene of the collision after you came beck from the car? * * * Have you made any statement-did you make any statement when you came back to this scene of the collision-in regard to what you were doing as you approached Wilbur street that was inconsistent or different from what you stated here to-day that you were doing?’ Discussion followed with the presiding judge, in which the object of the examination again was fully stated, but upon the objection of the defendant these question also were excluded. The rule of evidence is well settled that, if a witness either upon his direct or cross examination testifies to a fact which is relevant to the issue on trial,...