214 Mass. 568 | Mass. | 1913
There was a collision on a crossing of two public ways between the plaintiff and a car operated by the defendant, and the plaintiff was hurt.
The evidence as to the exact manner in which the accident happened was somewhat conflicting. The plaintiff testified in substance that she was in the daily habit of taking the car at the stopping place near which the accident happened that, seeing the car approaching from a distance and believing that she had time to cross the street if the motorman slowed up or reduced the speed of the car as she expected he would and as it was his duty to do, she made the attempt. There were two tracks, the outward and the inward, and she had crossed the outward and was stepping over the last rail of the inward when she was struck.
The motorman called by the defendant testified in his examination in chief that he had run “this particular trip” for a year; that the plaintiff was a regular passenger and that she generally boarded the car at this stopping place. As to the manner of the accident he testified that “he first saw the plaintiff when about half a car’s length from the intown cross walk on which she was crossing; that she was then on the outbound track and was hurrying; that he reversed his car and stopped as quickly as he could but not in time to prevent the accident,” and that “the right hand corner of the fender hit the plaintiff.” On cross-examination he denied that just after the accident he had made any statement inconsistent with his testimony as to the manner of the accident, and especially denied that he then said to the conductor, “ I thought I slowed up enough to give her time to get by, but I did n’t.”
The plaintiff, called in rebuttal, was asked whether on the morning of the accident she did not hear the motorman while in the street say to the conductor, “I thought I gave her time to get by, but I did n’t,” or words to that effect. The question was excluded.
It should have been admitted. If the motorman made such a
There was no formal offer to show what the plaintiff expected to prove. It often has been said that exceptions to the exclusion of testimony will not be sustained unless enough appears to show to this court what the testimony was expected to be, and that it was material. But as said by Allen, J., in Commonwealth v. Smith, 163 Mass. 411, 429: “We are reluctant to apply this rule in cases where we have no real doubt what the party offering the testimony expected to prove, even although it is not distinctly stated.” In the present case, in view of the testimony of Dr. Broughton and of the whole record, we can have no doubt what the plaintiff expected to prove.
We see no other error of law in the record, but for reasons above stated the order must be
Exceptions sustained.