Keefe v. Norfolk Suburban Street Railway Co.

| Mass. | Feb 27, 1904

Hammond, J.

1. We think no error of law appears in the admission of the statements made to the plaintiff by McAloon in the same conversation in which she alleges she was fraudulently induced to sign the release, although they were made after she had signed it. While it may be true that they could not have formed any part of the statements which induced her to sign, yet they were a part of the conversation during which the paper was signed and had a bearing at least upon her good faith in pressing the claim of fraud, and to meet the argument likely to be made by the defendant that this claim was an afterthought on her part. It is argued by the defendant that this part of the plaintiff’s testimony was not responsive to the question put to her. It was certainly responsive to the question as originally put, and the colloquy between the two counsel does not show that her counsel ever withdrew that question; but, however that may be, the point that the answer was not responsive to the question was not then taken by the defendant, and it is manifest that the judge understood, and properly, that the objection of the defendant was based solely upon the ground that the testimony was not admissible. The objection that it was not responsive cannot now be of avail to the defendant.

2. At the time of the trial the plaintiff was thirty-nine years and eleven months old, and her contention was that, if she should reach her climacteric before she had fully recovered, her suffering might be prolonged as one of the results of the accident. The defendant contended that upon the evidence the possibility that the plaintiff would reach her climacteric before her full recovery from the accident was so remote that it should not be considered by the jury as an element of damage; and at the close of the evidence asked the judge so to rule. The judge declined to rule as requested, and submitted this question to the jury, with instructions to which we do not understand the defendant to object except so far as inconsistent with the ruling requested. While the evidence tended to show that the average age of married women at the time the climacteric occurs is about forty-five or forty-six years, and of unmarried women a year or two earlier, yet it tended also to show that sometimes it occurred when the woman was only thirty years of age, and sometimes not until after she was fifty-five; and the physician who attended the plaintiff testified that she was at the age when the change of life might come, and “ if that comes at the age of forty, as it oftentimes does with unmarried women, it may prolong her nervous condition and keep her from rapidly recovering her health.” An expert physician called by the plaintiff testified that she was getting better now, and that it was “ only a question of time when she will get well, provided the climacteric does not come on very soon,” that this period in the case of an unmarried woman “ is liable to come at forty years of age.” Another expert called by the plaintiff testified that “if the change of life should develop within the course of the next two years I think that that would have a tendency to delay the recovery very much.”

It is true that there was much testimony to show that, after all, the chances seemed to be against the occurrence of the climacteric until after full recovery; still, in view of all the evidence, it cannot be said as matter of law that the likelihood that the climacteric would not occur until after full recovery from the effects of the accident was so remote as to call for the instruction requested by the defendant. The whole question was one of fact for the jury. The remaining exceptions having been waived, are not considered.

Exceptions overruled.