206 Mass. 534 | Mass. | 1910
The plaintiff was a passenger on one of the defendant’s cars going from Springfield to Holyoke. The plaintiff’s testimony was that this car, after making a part of the journey, was run into a car barn of the defendant, and passengers for Holyoke were directed there to take another car. The new car was an open car, and the bar on the side towards the plaintiff was down, so that passengers could not enter it on that side. The plaintiff went around the rear of the car for the purpose of boarding it, and fell into an unguarded pit close behind the rear of the car, receiving the injuries complained of.
1. The defendant admits that there was evidence of its negligence, but contends that the plaintiff was not in the exercise of due care, and so that a verdict should have been ordered in its favor. We think it plain that this question was for the jury. He was a passenger, had been carried upon the defendant’s premises, and there directed to take another car. It could be found that he took the natural and ordinary way to follow that direction. He had a right to assume that this way was safe and unobstructed. Connelly v. Boston, ante, 4, 5. Powers v. Old Colony Street Railway, 201 Mass. 66. There was also some evidence that the immediate neighborhood of the pit was not well lighted, and that he failed to notice it for this reason, although he was looking out to see where he. was going. The de
2. The defendant argues that the day sheet kept by Foster should have been admitted in evidence. This day sheet was materially different from the train sheet, the entries in which were held to be competent evidence in Donovan v. Boston & Maine Railroad, 158 Mass. 450. That was a record kept and used in the train despatcher’s office for the purpose of operating safely railroad trains, upon the accuracy of which the avoidance of collisions, the preservation of the railroad company’s property and the security of its passengers and employees from death or injury depended from moment to moment. For this reason, it was said in that case to be “ an act rather than a declaration.” Donovan v. Boston & Maine Railroad, 158 Mass. 450, 455. For similar cases, see Insurance Co. v. Railroad, 138 N. C. 42, and Louisville & Nashville Railroad v. Daniel, 3 L. A. R. (N. S.) 1190. This is stated with great force in the opinion of the court in the case last referred to. The alleged practice of the defendant in keeping a record of the changes of its cars rests upon no such necessity, and its correctness is assured by no such controlling considerations as were found in the three cases just cited. But it is settled in this Commonwealth that the doctrine of these decisions rests upon their peculiar facts and is not to be extended to other cases to which the same reasoning cannot be applied. Delaney v. Framingham Gas, Fuel & Power Co. 202 Mass. 359, 368.
It must be noted also that this record was not offered for the purpose of showing a fact therein stated, as has been the case in most of the decisions upon the general subject, but for the purpose of showing that the alleged change of cars did not appear thereon, and so laying the foundation for an argument that no such change was made. Riley v. Boehm, 167 Mass. 183, 187. L’Herbette v. Pittsfield National Bank, 162 Mass. 137, 142. Sanborn v. Fireman’s Ins. Co. 16 Gray, 448, 455. Morse v. Potter, 4 Gray, 292. The decision in Huebener v. Childs, 180 Mass. 483, turned on the provisions of St. 1896, c. 445 (R. L. c. 175, § 67), and so can in no way help the defendant. Even in the Donovan
But apart from this consideration we see no error in the exclusion of the paper in question. The witness was allowed to use it to the fullest extent to aid his memory. The court also ruled that even if the transaction had faded out of the mind of the witness, yet if upon looking at the record he knew that it was correct and could so testify, he might do so, and might read the record for the purpose of answering questions as to whether or not the alleged change of cars actually had been made. This was correct. Dugan v. Mahoney, 11 Allen, 572. Morrison v. Chapin, 97 Mass. 72. Adams v. Coulliard, 102 Mass. 167. Cobb v. Boston, 109 Mass. 438. But the paper itself was not competent for the purpose for which it was offered. Costello v. Crowell, 133 Mass. 352, 355. Commonwealth v. Jeffs, 132 Mass. 5. Mayberry v. Holbrook, 182 Mass. 463. Holden v. Prudential Ins. Co. 191 Mass. 153. Delaney v. Framingham Gas, Fuel & Power Co. 202 Mass. 359.
It would not have helped the jury to lay before them statements of the changes that had been made to and from other cars on other trips; and they bad the direct testimony of the witness Foster that the alleged change had not been made upon the trip in question. Comerford v. New York, New Haven, & Hartford Railroad, 181 Mass. 528.
3. It is contended that the entries made by Murphy were competent as independent evidence on the ground that they were entries made by him in the regular course of his duty of facts within his personal knowledge, and that he was beyond the jurisdiction of the court. Parker v. Nickerson, 137 Mass. 487, 496. But there was no suggestion that he was dead, and it now must be taken that the judge did not find that he was beyond the reach of the court. The testimony as to this came from Williams, and he testified only, “ I heard he was in New York. I wouldn’t swear to it.” This did not warrant a finding that Murphy was beyond the reach of process.
We find no error in any of the rulings excepted to.
Exceptions overruled.
