Smith v. Boston Elevated Ry. Co.
| Decision Date | 31 January 1911 |
| Docket Number | 899. |
| Citation | 184 F. 387 |
| Parties | SMITH v. BOSTON ELEVATED RY. CO. |
| Court | U.S. Court of Appeals — First Circuit |
Julian C. Woodman, for plaintiff in error.
M. F Dickinson and Walter Bates Farr, for defendant in error.
Before COLT and PUTNAM, Circuit Judges, and BROWN, District Judge.
This is a writ of error brought after the direction of a verdict for the defendant on the second jury trial of an action of tort for personal injuries.
A verdict for the plaintiff at the first trial was set aside for reasons set forth in our opinion of March 16, 1909. 168 F. 628. At the second trial, though the plaintiff made changes in her testimony, a verdict was directed for the defendant.
At the first trial it appeared that the plaintiff fell while entering the defendant's car. At the argument before us on the former writ of error it was contended that the testimony showed negligence of the defendant in two particulars: That the car was started with unusual violence, and that the conductor was guilty of negligence in starting the car too soon.
The charge of negligence in starting the car too soon was based upon the contention that the plaintiff 'was just in that unstable equilibrium which would make a start very dangerous for a woman in her situation, and that the conductor knew it or recklessly took the chances.'
Upon the hearing of the present writ of error it was contended in her behalf:
'She was holding her umbrella and small handbag and skirt in her left hand, and had a good hold on the side of the framework of the doorway with her right hand, and was leaning hard against it with her shoulder.'
While the present record hardly justifies this version of the plaintiff's testimony, it does contain testimony of the plaintiff to the effect that her right hand and right shoulder were braced against the facing of the door.
Having found in our previous opinion that under the authorities cited the car was not started prematurely though the plaintiff was not braced against the door, it follows that the changed testimony to the effect that she was braced can have no effect to modify our opinion as to the insufficiency of the testimony to show negligence in giving the starting signal too soon. As the present testimony upon this point is less favorable to the plaintiff than her previous testimony our former opinion is conclusive upon this question.
As to the charge that the car was started with unusual violence, the changed testimony is apparently directed to meet that part of our former opinion which said that her position was such that any ordinary jerk of the car in starting would be likely to throw her down, and that the plaintiff's testimony as to the manner in which she fell was consistent with the ordinary jerk of the car in starting and inconsistent with any sudden or violent jerk.
It is now urged that although the plaintiff was holding on to the side of the framework of the door, and bracing herself against it with her shoulder, the start was so violent as to throw her down. The following Massachusetts cases are cited: Nolan v. Newton St. Ry. Co., Banker & Tradesman (September 7, 1910) 206 Mass. 384, 92 N.E. 505; Lacour v. Springfield St. Ry. Co., 200 Mass. 34, 85 N.E. 868; Black v. Boston Elevated Ry. Co., 206 Mass. 80, 91 N.E. 891; Cutts v. Boston Elevated Ry. Co., 202 Mass. 450, 89 N.E. 21.
-- is directly inconsistent with the statement that:
'I held on to the side of the door and leaned against it, and I leaned hard against it with my shoulder.' Upon a consideration of her testimony in the two trials, it is apparent that there is a complete departure from the original claim that the plaintiff was in such unstable equilibrium that it was negligent to give a starting signal, to the present claim that she was so well braced and had such a good hold that only a violent jerk of the car of an unusual character could have caused her to fall.
We have before us two inconsistent versions given by the plaintiff of the same occurrence.
As the inconsistency is in the testimony of a party, a stricter rule is applicable than where the inconsistency is in the testimony of an ordinary witness. Previous inconsistent statements of a witness other than a party ordinarily go merely to the credit of the witness, and upon a second trial it may be left to a jury to decide which of the inconsistent statements is to be credited. The sworn testimony of a party who has control of his case, with power to bind himself conclusively by pleadings, stipulations or admissions, as to facts resting upon his own knowledge, is of such solemn character that, in the absence of a clear showing of mistake, inadvertency, or oversight, it should ordinarily be regarded...
To continue reading
Request your trial
-
Burguieres v. Farrell
...governing witnesses who are not parties. Nerio v. Christen et al., (Tex. Civ. App.) 189 S. W. 1038; Smith v. Boston Elevated Ry. Co. (C. C. A.) 184 F. 387, 37 L. R. A. (N. S.) 429, 431; Southern Surety Co. v. Inabnit (Tex. Civ. App.) 1 S.W.(2d) 412; 17 Tex. Jur. pp. 577, Appellant, by rathe......
-
Central Manufacturers Mut. Ins. Co. v. Rosenblum
... ... J. 360-361, sec. 349; ... Johnson v. Cincinnati, N. O. & T. P. Ry., 240 S.W ... 429; Smith v. Boston Elevated R. Co., 106 C. C. A. 497, 184 ... Carl ... Marshall, and Mize, ... ...
-
Kimmell v. Tipton
...are not parties. Mhoon v. Cain, 77 Tex. 316, 14 S.W. 24; Nerio v. Christen (Tex.Civ.App.) 189 S.W. 1038; Smith v. [Boston Elevated] Ry. Co. [1 Cir.] 184 F. 387, 37 L.R.A. (N.S.) 429; Hubb-Diggs Co. v. Mitchell (Tex.Civ. App.) 256 S.W. In Daugherty v. Lady, Tex.Civ.App., 73 S.W. 837, 838, th......
-
Palandjian v. Pahlavi
...v. Montgomery Ward, 388 F.2d 291 (6th Cir.1968), cert. denied, 393 U.S. 871, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968); Smith v. Boston Elevated Ry. Co., 184 F. 387 (1st Cir.1911); Teamsters Local No. 25 v. Penn. Transportation Corp., 359 F.Supp. 344 (D.Mass.1973); Wood v. United Air Lines, Inc.,......