Vahey v. Boston Elevated Ry. Co.

• Decision Date: 08 January 1916
• Citation: 222 Mass. 374,111 N.E. 40
• Parties: VAHEY v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

222 Mass. 374

111 N.E. 40

VAHEY

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 8, 1916.

Exceptions from Superior Court, Middlesex County; Wm. F. Dana, Judge.

Action by John Vahey against the Boston Elevated Railway Company. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

The colloquy referred to was as follows:

On direct examination the plaintiff was asked the following question:

‘Q. When you were riding on that car that night in the way that you were, did you-don't answer the question until after Mr. McLellan has a chance to object to it-did you have any knowledge or appreciate that there was any danger to you in riding in that front vestibule?’

Counsel for the defendant objected; whereupon the court asked counsel for the plaintiff if he had reference to the question of due care.

The court then stated the following: ‘Well, I am inclined to think that you have a right to ask the question, if you want to press it. There are some cases of somewhat similar character; I don't remember any case just like that.’ Whereupon counsel for the plaintiff said, ‘I don't myself.’ The court then said: ‘I think that it would be safer not to ask it, but I leave that for you to decide; I don't now remember any case similar to that.’ Whereupon counsel for the plaintiff said: ‘Well, I guess as long as there is objection, I won't press it.’ The question was asked, but not answered, and the talk above stated was all had within the hearing of the jury. The defendant duly excepted to this proceeding and to the statement of the court above set forth, and in taking his exception counsel for the defendant stated that the evidence was either admissible or inadmissible; that such a course of proceedings in front of the jury could not be other than prejudicial to the defendant.

James H. Vahey and Samuel K. Casson, both of Boston (Philip Mansfield, of Boston, of counsel), for plaintiff.

Hugh D. McLellan, of Boston, for defendant.

BRALEY, J.

[1][2] This is an action of tort for personal injuries, and the plaintiff having obtained a verdict the case is here on the defendant's exceptions to the refusal of the trial court to rule, that ‘upon all the evidence the plaintiff cannot recover’; that ‘there is no sufficient evidence of negligence on the part of the defendant's motorman, and the jury are hereby directed to return a verdict for the defendant’; that ‘if the jury should find that the plaintiff had a firm hold of some part of the car and the lurch was of such a nature as to break such hold, such facts so found would not warrant the jury in finding specific negligence on the part of the defendant's motorman’; that ‘if the jury believe and find that there was a lurch of the car of such a nature that it had no effect at all upon persons inside the care the plaintiff cannot recover,’ and to a colloquy between counsel for the plaintiff and the court while the plaintiff's evidence was being introduced. It seems necessary to repeat what has been often stated, that the credibility of witnesses and the weight of evidence are not reviewable by this court. The principal questions for decision are whether as matter of law there was any evidence of the plaintiff's due...