Soebel v. Boston Elevated Ry. Co.

• Decision Date: 01 January 1908
• Citation: 197 Mass. 46,83 N.E. 3
• Parties: SOEBEL v. BOSTON ELEVATED RY. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 46

83 N.E. 3

SOEBEL v. BOSTON ELEVATED RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

January 1, 1908

COUNSEL

Walter A. Buie and John F. Cusick, for plaintiffs.

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

OPINION

KNOWLTON C.J.

The defendant has filed two bills of exceptions, one founded on instructions to the jury at the trial, and the other on a ruling of the judge at a hearing of certain motions of the defendant for a new trial. The only question argued upon the first bill relates to the judge's instructions upon the burden of proof. The instructions on this point were quite full, given in part in the original charge, and in part after a question had been raised at its close by the defendant's counsel. In explaining the term 'burden of proof,' the judge said that the jury could not find in accordance with a particular contention, unless it was 'proved it was so.' He added: 'By 'proved that it was so' I mean a balance of proof in favor of that theory. * * * The plaintiff must make his side heavier stronger, in favor of the proposition, to your minds, than that of the defendant, because if your minds remain balanced you will have to give a verdict for the defendant.' In another place he said: 'Such damages as are proved by a fair preponderance of the evidence, she is entitled to recover for, and those which she has not so proved, she is not entitled to recover for.' There was considerable of explanation and elaboration, some of which, taken alone, was not expressed in the most felicitous terms; but we think the jury must have understood the law on this subject, the general statement of which was correct. The use of the word 'probable' in different parts of these instructions was not such as to call for a new trial under the criticism of the charge contained in Haskins v. Haskins, 9 Gray, 390. These exceptions must be overruled.

One of the two motions for a new trial was on the ground of newly discovered evidence. In support of this motion affidavits of different witnesses were filed, setting forth what other persons had said, showing their knowledge of important facts which were not known to the defendant and were not introduced at the trial. One of these persons, from whom very important statements were presented in this way, was out of the state, and it appeared that an affidavit could not be obtained from her. At the hearing the plaintiffs requested that these affidavits be excluded from consideration. In his memorandum accompanying the statement of his decision not to grant the motion, the judge said: 'I decline to receive or consider hearsay statements on either side.' The defendant excepted to this as a ruling, and its bill of exceptions, which was allowed by the judge, contains this statement: 'Which ruling was made as a matter of law and not of discretion.' We understand, therefore, that, in dealing with these motions, the judge ruled as matter of law that he could not receive or consider any affidavits, so far as they were statements of hearsay. He also refused to hear oral testimony upon the motions. He found that the defendant was not chargeable with want of diligence in procuring the testimony disclosed in its affidavits. We therefore must consider the question whether, at a hearing upon a motion for a new trial on the ground of newly discovered evidence, the moving party is precluded, under all circumstances, from using any affidavits to show the existence of such evidence, other than those of the witnesses themselves who would give the testimony if the new trial was granted.

It is to be noticed at the outset that the primary question before the judge in such a case is not what the truth is, as to the matter to which the newly discovered evidence is directed but whether there is such evidence. A secondary question is whether it is reliable and important. As a practical consideration, we all know that persons who can give important testimony often will not volunteer it, and sometimes decline to give it in any form unless they are forced to. They cannot be compelled to make affidavits, and often the only practicable way of informing a court of the existence of such evidence is by an affidavit of some one to whom they have made oral disclosures. Where the judge declines to hear oral testimony upon the...