200 Mass. 527 | Mass. | 1909
The refusal of the president to answer the eleventh interrogatory affords no ground of appeal. The defendant was not compelled under R. L. c. 173, §' 63, to disclose in advance its theory of the accident, or to state the facts derived from investigation, upon which it relied to establish its defense. Gunn v. New York, New Haven, & Hartford Railroad, 171 Mass. 417. Robbins v. Brockton Street Railway, 180 Mass. 51. Spinney v. Boston Elevated Railway, 188 Mass. 30.
We pass to the rulings requested by the plaintiff, and to the instructions under which the case went to the jury. In all there were twelve requests. Of these, the second, third, fifth, eighth and ninth were given substantially in the language requested, while the seventh, subject to the plaintiff’s exception, was given in a modified form. The tenth was properly refused, as the judge was not called upon to single out a portion of the evidence for comment. Besides, the jury must clearly have understood from the instructions, which if not in terms certainly in substance embodied the request, that the credibility of the witnesses, and the weight of the evidence as to any adequate explanation offered by the defendant, were all for their determination. The' twelfth also was properly refused for the first reason given above for the refusal of the tenth. By the first part of the eleventh request, the plaintiff directed the attention of the judge to the degree of care required of a common carrier of passengers, and the instructions were in conformity therewith. The second part could not properly be given as it subjected the defendant to a greater liability than the law imposes. Millmore v. Boston Elevated Railway, 194 Mass. 323. Marshall v. Boston & Worcester Street Railway, 195 Mass. 284, 287.
But the plaintiff’s principal complaint arises from the refusal to give the sixth and seventh requests, without modification. In the case of Ware v. Gay, 11 Pick. 106, 112, where a stage coach, in which the plaintiff was a passenger, overturned and broke his leg, it was said, “ The wheel came off upon a plain and good
The requests, therefore, except so far as given, were properly refused, and the instructions, which fully and accurately recognized this distinction, were correct in law.
Exceptions overruled.
The plaintiff contended that the letter showed bias against the plaintiff on the part of the writer who had testified as a witness for the defendant.