152 Mass. 42 | Mass. | 1890
It was not competent for the defendant to prove that its servants usually rang the bell at this crossing, and to ask the jury to infer therefrom that it was rung at the time of the accident; neither was it competent for the plaintiff to prove that the defendant’s servants often or usually omitted to ring the bell at this crossing, and to ask the jury to infer therefrom that the bell was not rung at the time of the accident. It is not a case where proof or disproof of a habit of ringing the bell was competent evidence on the main issue. The plaintiff’s counsel concedes this.
The defendant’s witness, Halpin, on direct examination, testified, apparently from recollection, that he rang the bell at the time of the accident. The cross-examination was intended to show that he believed that he or the fireman always rang the bell at this crossing, and that therefore he inferred from this usage that he rang the bell at the time of the accident, but that he did not remember that he rang it. So far as it had this effect, it tended to discredit his testimony. The cross-examination, as we interpret it, did not show that he had no recollection whatever of ringing the bell at the time of the accident; if it had, his testimony should have been excluded. The testimony elicited on cross-examination for the purpose of testing the recollection of the witness, as it did not contain facts which were themselves relevant to any other matter involved in the trial, could not be contradicted by other evidence. In Wentworth v. Eastern Railroad, 143 Mass. 248, the evidence contradicted was evidence of a'uniform practice, and it was tacitly assumed that such evidence was competent in that case. The case at bar more nearly resembles Davis v. Keyes, 112 Mass. 436. See Commonwealth v. Cain, 14 Gray, 7; Whitney v. Gross, 140 Mass. 232.
Exceptions overruled.
