288 Mass. 63 | Mass. | 1934
These cases were tried to a jury and resulted in verdicts for the defendant. The main cause of action was founded on personal injuries received at about four o’clock in the afternoon of September 25, 1929, when the minor plaintiff, while returning from school, was struck by an automobile driven by the defendant. At the trial one Walulik testified that he was present in Holyoke and saw the accident; that, leaving at five minutes past four o’clock on that afternoon, he went by street car through Springfield to Palmer, where he lived and worked. His time card showed that he punched the time clock at his place of employment in Palmer on that day at fifty minutes past four o’clock in the afternoon. There was other testimony to the effect that the street car which left Holyoke at five minutes past four o’clock in the afternoon of the day in question arrived in Springfield at forty minutes past four o’clock, and that street car service between Springfield and Palmer (the distance between which is fifteen miles) had been abandoned more than six months previous to the accident. Walulik was recalled and testified that he did not take a street car from Springfield to Palmer, that there was no bus service, and that he took an automobile. Besides that of Walulik, there was other testimony offered in behalf of the plaintiffs by an alleged eyewitness as to how the accident happened. Each plaintiff filed a motion for a new trial on the ground of newly discovered evidence, supported by affidavits of two persons. One of these was to the effect that the affiant received a call in Holyoke from the witness Walulik on the morning of the day of the accident. The other affidavit was to the effect that Walulik came to the affiant’s place in Holyoke
The facts set out in the second affidavit were too indefinite and remote from the issues to merit serious consideration.
The request for ruling as applied to the other affidavit is equivocal. If it be treated as meaning that the facts therein stated required a new trial as matter of law, such a ruling could not rightly have been made. Kelley v. Boston, 201 Mass. 86, 90. If, however, the request be interpreted as meaning that the facts stated in the affidavit, if found to be true or reliable, would as matter of law justify granting a new trial, no error is shown. The plaintiffs are in no better position than they would be if the requests had been denied. John Hetherington & Sons, Ltd. v. William Firth Co. 210 Mass. 8, 17. Plimpton v. New York, New Haven & Hartford Railroad, 221 Mass. 548, 551. The vital point was whether Walulik was present at the accident at about four o’clock in the afternoon, not whether he was in Holyoke in the forenoon of that day. The proposed evidence was unrelated to the main issue. It was not in any respect decisive even if given full credence. It would not justify the granting of a new trial. See Brien v. Holyoke Street Railway, 257 Mass. 443.
In each case the entry may be
Exceptions overruled.
