167 Mass. 483 | Mass. | 1897
1. In respect to the question whether there was sufficient evidence that due care was exercised by the parents of
2. The question to the child’s father, whether he considered his boy to be of average intelligence, of ordinary capacity, was not a question as to his sanity or insanity, but of his comparative brightness. It does not need an expert to testify on this subject, and the evidence was rightly admitted. Laplante v. Warren Cotton Mills, 165 Mass. 487.
3'. The plaintiff had introduced some evidence tending to show negligence or carelessness on the part of the defendant in operating its street railway, and unfitness or gross negligence or carelessness of the defendant’s servants in managing the car, and thus to bring his case within the provisions of St. 1886, c. 140. It was not in dispute that the regular motor-man, Smith, was instructing Carroll, who had been running on the car with Smith for two or three days, and who at the time of the accident was alone handling the brakes and the power.
The two grounds upon which the plaintiff relied were, that Carroll was an incompetent man in the position which he occupied, and that there was gross negligence on the part of Carroll and Smith in the operation of the car. Carroll was a witness for the defendant, and on his cross-examination the following question and answer were admitted, under exception : “ Q., Have you had any car to run since the accident? A. No car to run steady.” There was also some evidence respecting Carroll’s pay. In respect to this evidence, the court instructed the jury as follows : “ That was admitted as bearing upon the question merely of the light in which Carroll was viewed by the defendant company itself.” And again: “ It is to be considered only as tending to show, if it has such tendency, in what light Carroll was viewed with reference to competency and fitness by the company itself.” The admission of this evidence for the purpose stated presents the question whether the virtual discharge of a servant from his regular employment after an accident can be proved, in a case like this, as an implied admission by his em
It has heretofore been held that taking additional precautions, after an accident, to prevent other accidents, is not admissible in evidence in a case like this for the purpose of showing negligence. Shinners v. Proprietors of Locks & Canals, 154 Mass. 168. Downey v. Sawyer, 157 Mass. 418. Columbia & Puget Sound Railroad v. Hawthorne, 144 U. S. 202. The same reasons which led to those decisions apply in the present case. To hold otherwise would tend to discourage the adoption of additional safeguards by improving the quality and raising the standard of the service. The admission of this evidence for the purpose stated may have prejudiced the defendant’s case in the mind of the jury.
Exceptions sustained.
