237 Mass. 245 | Mass. | 1921
It is settled under R. L. c. 175, § 66, that the declaration whether oral or in writing by a person since deceased, who if living would be a competent witness at the trial, cannot be admitted in evidence unless the presiding judge' “finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.” Stocker v. Foster, 178 Mass. 591, 602. Dixon v. New England Railroad, 179 Mass. 242, 246. Dickinson v. Boston, 188 Mass. 595, 597. Heathcote v. Eldridge, 226 Mass. 168. O’Driscoll v. Lynn & Boston Railroad, 180 Mass. 187. And “this judicial action is to be inferred from the admission of the evidence itself where the exceptions fail to state that the inquiry was not made.” Dickinson v. Boston, 188 Mass. 595, 597. Heathcote v. Eldridge, 226 Mass. 168. The plaintiff, in describing what happened after she fell, said, “Mr. McCarthy, as I learned later he was, came down and he picked me up,” and, McCarthy having died, his sister, called by the plaintiff, testified in direct examination to a conversation with her brother “about the plaintiff’s accident on which this suit is based.” But, before narrating the conversation she was cross-examined, dining which she testified, that having asked him how the plaintiff “got hurt” “he told me she was on the car,” and to the question, “That is all there is to it?” the response was, “Yes.” The first question on redirect examination, “Now what did he tell you?” was answered subject to the defendant’s exception, “He told me that the car was stopped, the conductor rang the bell, the car started and the girl was thrown into the street, and that was the end of the conversation. We said nothing more about it.”
If the record closed here the admission itself of the evidence would be sufficient to support the presumption that the judge was satisfied the declaration was made in good faith and upon McCarthy’s personal knowledge and before the action was begun. Marston v. Reynolds, 211 Mass. 590. Heathcote v. Eldridge, 226
The plaintiff urges that in view of the instructions the defendant has not been prejudiced, and St. 1913, c. 716, § 1, should be applied. We cannot however disregard the fact that the jury were permitted to consider statements not admitted in evidence, and which, if properly before them, tended strongly to corroborate the plaintiff’s version of the accident.
Exceptions sustained.