Smith v. Boston Elevated Ry. Co.

• Citation: 208 Mass. 186,94 N.E. 315
• Parties: SMITH v. BOSTON ELEVATED RY. CO.
• Decision Date: 02 March 1911
• Court: United States State Supreme Judicial Court of Massachusetts

208 Mass. 186

94 N.E. 315

SMITH v. BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1911

This was an action for damages for injuries received by the sudden starting of a street car. The court, during the cross-examination of plaintiff, stated in response to a request of defendant's counsel that the stenographer read an answer of the witness to settle a dispute as to what the answer was: 'You need not stop to read it. This is an awfully tedious examination. It is bad enough to hear the stuff once, but now you are going to read it afterwards. That is too much'--and that there was no dispute but that the court was merely trying to tell counsel that he had nothing to do with the answer, and that the court did not care to go over the matter again. Counsel for defendant during his argument stated to the jury his version of the incident relating to the answer of plaintiff to the question put to him, and then added: 'So you see that I was right about it, and the court was wrong.' The court, in concluding its charge, stated as follows:

'Now there is one matter which I want to call your attention to which I do not very often do, but I think in this case I will. You heard some controversy during the trial as to what a witness said. It was not always easy to determine just what the plaintiff did say, but one question he answered. Sometimes I could hear a little and sometimes I could not but he answered one question and Mr. Sherman, counsel for the plaintiff, said he could not hear, or some such expression. I then stated to him what I understood him to say; not the full expression that he made, but as I understood him to say when he was asked with reference to hearing the bell; in answer to that question, although it had been asked half a dozen times before. It was put the last time and I thought he answered that his hearing of the bell was after he was on the car. I so stated to Mr. Sherman, and I said he might mean the time when he was put on the car; after he was put on the car by the conductor. Of course he might also mean after he was on the car, as he might have termed it, when he got his foot on but there were two times there was no controversy about. I did not undertake to give all the words, for perhaps I did not get them all; but I said that. Now, counsel for the defendant interrupted and said that was not what he said; that he said 'No,' and then I asked the stenographer to read the answer to the last question. The stenographer started to read it, and counsel for the defendant said that wasn't what he wanted; that was not the answer that he was talking about. It was the question before that that he was talking about, and I said, 'That is not what I am talking about.' Now, it may be I was all wrong, as the counsel told you in the argument, and he was all right.

'That is the explanation I wanted to make and that is what the controversy was about. It is not of much consequence whether the judge is right or wrong; but it is annoying, sometimes, to me, when counsel insist on going outside of their argument to say that the judge was all wrong and he was right. That is what I said, and that is the way I understood. Now, you heard it all. Perhaps you know I was wrong; perhaps you know I was right. It won't make much difference to your determination. I only call attention because it is a matter somewhat personal to myself.'

The defendant excepted to so much of the charge as is set forth in the preceding paragraphs, and the court then, at the request of the plaintiff, further instructed the jury as follows:

'Now, with reference to the explanation I gave you; the personal one to myself. It is suggested that I say this to you, as to what the witness said: The answers of the witness to any questions and to all questions are matters solely for the jury. If you did not hear what was said, some of you may have heard, and you

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