Baker v. Harrington

196 Mass. 339 | Mass. | 1907

Rugg, J.

A material dispute between the parties at the trial was as to the amount of light thrown upon the hallway and stairs, where the plaintiff fell, by lights after nightfall from the neighboring streets and stores, the plaintiff claiming that the hallway was so dark that she could not distinguish the head of the stairs. The defendant thereupon called witnesses, who were permitted to testify, against the exception of the plaintiff, that the light from these outside sources illuminated the hall, so that the head of the stairs could be seen plainly along the course of the plaintiff’s footsteps immediately preceding her fall. This testimony was based upon observations made by the witnesses a considerable time after the accident. The trial court must have determined, as a preliminary question, before admitting the evidence, that the conditions were substantially the same at the time of the observations testified to as they were at the time of the injury. But he further instructed the jury as follows: “I admitted evidence of certain tests or certain observations on a Sunday night not far back. Now, those tests are of no importance unless the conditions under which they were made are precisely the same as the conditions existing at the time of the accident. There is some contradiction as to how many lights on the opposite side of the street were lighted at that time, possibly as to how many there were in front of Easton’s store, and you have heard Mr. Smith . . . who told you when they were put in and all of them prior to . . . [the date of the accident], Mr. Knight has testified, and others have, with reference to the arc light. . . . So, too, it is not a question as to one who has exceptionally good eye-sight, but it is one who has practically the same eye-sight as the person using the stairs at the given time. So, gentlemen, I instruct you, unless you find the condition existing on the Sunday night when . . . [the witnesses] . . . made their observation, precisely the same as at the moment when Mrs. Baker went through the hall and fell down the stairway, you are to disregard it.” In Dow v. Bulfinch, 192 Mass. 281, it was said by Hammond, J., “ The question whether evidence of experiments shall be admitted must be largely left to the discretion of the trial judge, and that discretion will not be interfered with unless in its exercise he clearly appears to be wrong.” Commonwealth v. Tucker, 189 Mass. 457, 478. Observations and experiments made at times other than the main occurrence at issue have been frequently received and not infrequently rejected, often but not universally, in the discretion of the trial court. Commonwealth v. Goodman, 97 Mass. 117. Hunt v. Lowell Gas Light Co. 8 Allen, 169. Hodgkins v. Chappell, 128 Mass. 197. Baxter v. Doe, 142 Mass. 559. Brierly v. Davol Mills, 128 Mass. 291. 1 Wigmore, Ev. § 460. See Bemis v. Temple, 162 Mass. 342; Johnstone v. Tuttle, ante, 112. There is nothing to show in the present case that the Superior Court plainly was wrong in the exercise of its discretion, and the instructions carefully guarded the jury from making any improper use of the evidence.

Exceptions overruled.