Maguire v. Middlesex Railroad

115 Mass. 239 | Mass. | 1874

Ames, J.

The only error that occurred in the trial in the court below was in the admission of the testimony that the driver had been seen on several previous occasions to stop the car suddenly. The plaintiff’s complaint was that in consequence of a sudden stop he was thrown from the platform, and injured by being run over. The question for the jury, supposing he had satisfied them that he was in the exercise of due care, was as to the exercise of the like degree of care on the part of the defendant at the time of the accident. The fact that the same driver had at some other times been guilty of careless or unskilful management could have no legitimate bearing upon the question as to the care or skill exhibited at the time in controversy. This evidence was objected to, and the plaintiff’s counsel appear to have yielded to the objection, and to have proceeded no further in this line, of inquiry. It is true that it does not appear that it was afterwards alluded to, either by the counsel or the court, but it had been given in the trial, and we do not find anywhere any instruction to the jury to disregard it. It is impossible to say that it did not have some influence upon their decision, and the case therefore comes within the rule laid down in Brown v. Cummings, 7 Allen, 507. See also Ellis v. Short, 21 Pick. 142 ; Farnum v. Farnum, 13 Gray, 508. The plaintiff had ceased to pursue the inquiry, but the evidence, so far as he had gone, was in, against the defendant’s objection. The only way to prevent the jury from regarding it as legal and material was to give them a distinct ruling that it was not so, and this does not appear to have been done.

Upon this point only we find it necessary to

Sustain the exceptions.