Carroll v. Boston Elevated Railway Co.

96 N.E. 1040, 210 Mass. 500, 1912 Mass. LEXIS 1000

Opinion

Hammond, J.

In order for the declaration of Sloane, the deceased, to become admissible, it was necessary for the presiding judge to find that the declaration was made in good faith, before the commencement of the action and upon the personal knowledge of the declarant. E. L. c. 175, § 66. The statement was excluded because the presiding judge was not satisfied that these conditions of the statute had been complied with.

We cannot say that the presiding judge in coming to this conclusion was not justified by the evidence. He saw the witness McPhail, and may not have been satisfied that his statement, that the interview with Sloane took place before the commencement of the action, was exact, or he may not have been satisfied in view of all the evidence in the case that the statement of the deceased was made in good faith. The burden was upon the party offering the evidence to satisfy the presiding judge that there had been compliance with the conditions of the statute.

Exceptions overruled.