Smith v. Duncan, 181 Mass. 435

Smith v. Duncan

181 Mass. 435 | Mass. | 1902

Morton, J.

This is an action to recover for personal injuries which the plaintiff received from being knocked down and run over by horses belonging to the defendant and driven by a man in his service. There was a verdict for the plaintiff. Several exceptions were taken by the defendant, but only one has been argued, and we therefore treat the others as waived. The exception that was argued relates to a matter of evidence. A witness, a police officer, called by the plaintiff, was allowed to testify against 'the defendant’s objection to a repetition to the defendant, who arrived shortly after the accident, of a conver*436sation which he had had with the driver of the team. The conversation was, in substance, that he, the driver, was feeding the horses and had taken the bits out of their mouths; that they started to run and he tried to-stop them and they got away and ran over the lady; and that he ought not to have taken the bridle off one of the horses because the horse was a vicious horse and had run away before. The driver was called as a witness by the defendant and denied that he made the statements testified to by the police officer, and the defendant also denied that the officer told him that the driver had said the horse was vicious, or that he ought not to have taken the bridle off.

We think that the exception cannot be sustained. It may be fairly presumed that the defendant as owner of the horse knew whether it was vicious or not, and if he suffered the statement that it was vicious to go uncontradicted or unchallenged, and the jury were of opinion that he naturally wrould have contradicted it if he could, they would be justified in treating his silence as an admission of the truth of what was said. Greenfield Bank v. Crafts, 2 Allen, 269. Commonwealth v. Funai, 146 Mass. 570.

As to the rest of the conversation, it is to be observed that the objection, so far as appears, was to the conversation as a whole, and the presiding judge was justified in so treating it. If, after the conversation was in, it appeared that a part of it was admissible, and a part of it was not, the defendant could have moved to have that part of it which was inadmissible stricken out, but so far as appears he did "not ask to have that done. It is not necessary therefore to consider whether the rest of the conversation was admissible or not. Even if it was not, the defendant has lost his right to object to it.

Exceptions overruled.