203 Mass. 384 | Mass. | 1909
The collision in which the plaintiff was injured and lost the sight of his left eye occurred on December 28, 1906. The defendant was allowed to introduce evidence that in 1904, in a saloon, the plaintiff had been struck on the left cheek bone and his left eye injured. This evidence was received under his objection. He then asked to have it excluded, and the judge refused to exclude it then, but said that he would strike it out afterwards unless other evidence was put in. It does not appear that other evidence was put in on this matter; but the judge’s attention was not again called to it, and he made no further ruling on the subject. The plaintiff had not excepted to its admission. This evidence might be material upon the question of damages, to show what the condition of the plaintiff’s left eye was just before the accident. It cannot be said that the evidence was not competent, as one step toward showing that condition; the judge’s attention was not called to the fact that there was no further evidence to show that the previous injury had
Testimony of the injuries suffered by the plaintiff in 1907 and of their effect upon the left side of his head and his left eye was admitted solely upon the question of damages. It was competent for the defendant to show, if it could, that his injuries were caused in whole or in part by another cause after the accident in question, and so that the defendant could not be held for the full amount of damages claimed. And if there had been any error in the admission of evidence upon the question of damages, it was made immaterial by the general verdict for the,defendant. Carroll v. Boston Elevated Railway, 200 Mass. 527, 533. Oak Island Hotel Co. v. Oak Island Grove Co. 165 Mass. 260. It may be true, as has been urged in argument, that this testimony, if it had been admitted generally, would have been unduly prejudicial to the plaintiff upon the issue of his due care; but here the jury were expressly told that the evidence was received only for the one purpose, which has been stated, and it must now be presumed that they followed the instructions of the judge. Sullivan v. Lowell & Dracut Street Railway, 162 Mass. 536.
The testimony of Dr. Gates as to the effect of the subsequent injury upon the plaintiff’s vision if he already had lost the sight of his left eye was not made incompetent by the facts that the witness had seen the plaintiff only twice and had noticed no trouble as to discoloration or swelling of the other eye. This went only to the weight of his testimony. We cannot say that it is not a matter of expert knowledge whether or how far the vision of one eye or its power of adjustment or accommodation to distances, which had caused trouble after the loss of the other eye, might be affected by another injury in or close to the same place.
The exclusion of the letter written by Collyer to the plaintiff was correct. The motorman Hill had denied any connection with the letter or knowledge of it, and there was no evidence to contradict him. It was as likely that Collyer was making a barefaced attempt to obtain some advantage for himself by trading upon a pretended influence over Hill as that he wrote
The rejection of the testimony of Erck and of Ferry as to their observations of the weather on the day of the accident presents a more difficult question. But we are of opinion that it was for the judge in the exercise of his discretion to determine whether this testimony was too remote to assist properly the jury in settling the issue upon which it was offered. Sargent v. Merrimac, 196 Mass. 171, 174, and cases cited. It perhaps would have been a wiser exercise of that discretion to have admitted the testimony of these two witnesses to be considered together, and to have left it to the jury to determine the weight to be given to it under proper instructions; but we cannot say as matter of law that its exclusion was erroneous.
The accident occurred at twenty minutes after seven o’clock, about three hours after sunset, on a winter’s night. The evidence for the plaintiff tended to show that it was a dark and cloudy night; according to the defendant’s evidence, it was a bright night. This was a material question upon the main issues in the case. The moon had risen more than four hours before the happening of the accident, and was full two days afterwards.
Erck was a sergeant in the United States army, stationed at the armory at Springfield, and was charged with the duty of taking and recording observations there. He testified that he had observed and recorded the state of the weather and had tested the amount of light and cloudiness at the armory, six or seven miles distant from the place of the accident, at the hours of seven in the morning, two in the afternoon, and nine at night of the day in question. The plaintiff offered to show, by him and by his records, that on this night at nine o’clock, at the Springfield armory, there was a state of “ total cloudiness,” that is, that neither sun nor moon would be visible; and this evidence was excluded. Erck also testified that the weather as to
Ferry testified that he had taken and recorded observations at his house in Holyoke. The plaintiff offered to show by him that, on the day of the accident, the weather was cloudy at the hours of seven in the morning, noon, and six o’clock in the evening; and this evidence was excluded. The distance from Ferry’s house to the place of the accident was not directly testified to, but some circumstances in evidence indicated that these places were some miles apart.
As neither the testimony of these witnesses nor Erck’s records were themselves incompetent, the question is whether the evidence offered, at least as to the evening of the accident, was of such a character and presented such variations of time, place or other circumstances as to make its admission a subject for the exercise of judicial discretion rather than one of legal right.
It is matter of common knowledge that weather conditions are variable both in place and time; and it has been said that this is especially true' of the climate of New England. Rain or-snow may be falling in any one part of a given district while in another part not many miles away the weather may be pleasant. The light of the moon may be obscured by clouds in one place, while it is shining brightly in another place. And sunshine or moonlight may quickly and repeatedly alternate with thick clouds and rain or snow. In the afternoon of the day on which this case was argued at Springfield, there were such alternations. And on a moonlight night, when there are clouds in the sky, it often happens that periods of bright moonlight and of complete obscuration by heavy clouds with resultant darkness succeed each other at short and frequent intervals. The conditions of light at one time and place under such circumstances might not enable a jury to draw a trustworthy inference that the conditions were the same an hour or two earlier or later at a place some miles distant from that testified to. It is a question of fact, to be determined by the presiding judge, whether such testimony is reasonably adapted to aid the jury in passing upon the issue before them ; and this court will not attempt to revise his decision unless upon the undisputed facts it was plainly and clearly wrong. This is the unbroken doctrine of our decisions.
The testimony of Ferry as to the depth of snow observed by him comes under the same principle. Brooks v. Acton, 117 Mass. 204. We cannot sustain the exceptions to the ruling excluding this evidence.
The judge instructed the jury against the exception of the plaintiff that there was no sufficient evidence that the defendant was running its car at a high rate of speed, and the plaintiff could not recover upon that ground, that is, — as we think appears from the whole of the charge, — that he could not base a recovery upon this as an independent ground of liability. The instructions taken together evidently left it to the jury to consider the speed of the car in connection with the other circumstances proved upon the question of the defendant’s due care or negligence. Driscoll v. West End Street Railway, 159 Mass. 142. So construed, the ruling was not wrong. While there was much evidence that the car was moving slowly, and no direct testimony that its rate of speed was more than six or seven miles an hour before the collision, and much less than that when the accident occurred, yet there was evidence of circumstances which might have warranted a finding that the car was moving more rapidly. The time that elapsed after the parties saw each other, the rate of speed of the plaintiff’s horse, the degree of suddenness of the collision, the violence of the impact, the distance that the car went before it was stopped, were some of these circumstances. But this car was going along a country road, outside the regular roadway, in a strip separated therefrom; and until the motorman saw that there was some risk of a collision he was not bound to anticipate that the plaintiff would drive needlessly or recklessly upon or so near to the track as to involve actual danger in the ordinary running of the car. O ’Brien v. Blue Hill Street Railway, 186 Mass. 446. There was no evidence that the
The plaintiff’s first request for instructions was manifestly intended to be given. While the judge’s language as to this point was not well chosen and was technically incorrect, yet it does not seem to have been likely to mislead the jury. Moreover, he told the plaintiff’s counsel that this had been charged explicitly. As the counsel then made no further complaint, he must now be taken to have acquiesced in the judge’s statement, and has not the right to criticise nicely the language of the judge.
The third, fourth and fifth requests were given in substance. So far as they were modified by leaving it to the jury to say how far the plaintiff’s injuries at other times affected him or delayed or impaired his recovery, this was correct.
The judge ruled that “ if the plaintiff at the time of the acci- . dent unnecessarily and not in the exercise of due care drove out of [the] road or the macadamized part of it and in close proximity to [the] defendant’s track, and this caused or contributed to cause his injury, then he is not entitled to recover.” This was right. It required the jury to find not only that his act was unnecessary, but that he was not in the exercise of due care in doing it.
The eighteenth request was correct as a general proposition of law. Vincent v. Norton & Taunton Street Railway, 180 Mass. 104. But the judge was not required to give it. He was not to suggest an argument for the plaintiff. The jury were to pass upon the particular circumstances of the case as these were proved to them. Blackburn v. Boston & Northern Street Railway, 201 Mass. 186.
The jury were properly instructed as to the subject matter of
What the judge said about the right to discredit all the testimony of a witness who had wilfully testified falsely was not erroneous. It is true that we do not adopt the maxim falsus in uno falsus in omnibus, as a rule of law. But it is also true that a jury may apply it so as to disregard entirely the testimony of any particular witness if they áre convinced that they ought so to do. Commonwealth v. Wood, 11 Gray, 85, 93. Commonwealth v. Billings, 97 Mass. 405. Hill v. West End Street Railway, 158 Mass. 458, 460.
Wbat the judge said in reference to the testimony of the plaintiff and Boulais as to the manner in which the plaintiff was injured in striking the pole was not a charge upon the facts within the meaning of R. L. c. 173, § 80. If he misapprehended the plaintiff’s contention or did not remember correctly the testimony, the mistake might properly have been called to his attention. But this was not done.
What we have said «covers all the exceptions that have been argued. None of them can be sustained.
Exceptions overruled.
