Blackburn v. Boston & Northern Street Railway Co.

201 Mass. 186 | Mass. | 1909

Hammond, J.

1. These two actions for personal injury were tried together.

It is unnecessary to consider whether or not the order setting aside the verdict at the second trial upon the question of liability only was erroneous. It is true that the plaintiffs alleged exceptions to that order, but no attempt was made to establish the exceptions and they were finally waived. The plaintiffs having waived their right to contest the validity of the order, were bound by it in all subsequent proceedings whether it was right or wrong. It became the law of the case for this third trial, and the judge rightly confined the trial to the question of liability in accordance with its terms.

2. There was no error in the exclusion of the question put by the plaintiffs to the motorman on cross-examination as to whether the circumstances assumed in the question constituted “as favorable a condition to make up your time as could possibly be calculated.” The cross-examination had been conducted for some time on this line and the judge may well have concluded that the answer to this question, whether it should be in the affirmative or in the negative, would have added nothing to what already had been elicited of could not have been of any assistance to the jury. The plaintiffs do not show that the action of the judge was prejudicial to them.

3. There was no error in allowing the exhibits to go to the jury. They were made a part of the deposition of the witness Swan by reason of the cross-interrogatories and had been shown to the jury, when the deposition was read, without any objection on the part of the plaintiffs. The plaintiffs could not have been prejudiced by separating them from the deposition and sending them to the jury.

4. At the close of the evidence the plaintiffs presented four requests for rulings. The first was given in substance. And we think the same may be said of the second. As to the third it is sufficient to say that it was given with proper limitations applicable to the various views which the jury might take of the evidence. The fourth entirely excluded the question of due care of the plaintiffs. Besides it was too broad and on that account not a correct statement of the law. It entirely excluded the distinction between negligence and a mére error of judgment on the part of the motorman. The last exception concerns only the case of Blackburn, and relates to the question whether or not the negligence, if any, of Knowlton, the driver of the team in which both were, was attributable to Blackburn. Upon this matter the charge was full, explicit and sufficiently favorable to him. Shultz v. Old Colony Street Railway, 193 Mass. 309.

Exceptions overruled.