Daniels v. City of Lowell

29 N.E. 222, 139 Mass. 56, 1885 Mass. LEXIS 19

Opinion

Holmes, J.

1. The accident to the plaintiff happened at a street crossing on Sunday evening, December 24, 1882. Two policemen were allowed to testify as to the condition of the same crossing on a Sunday evening between the middle and last of December, 1882, they having been led to examine it by hearing of an accident to a woman there. The evidence was clearly admissible. There was quite enough to warrant the inference that it referred to the occasion in question. If the jury had thought that it referred to a different Sunday, they no doubt would have disregarded it.

2. The direction to the jury, that, “ if there were any residents or taxpayers in Lowell on the jury, such would leave their seats,” did not preclude the plaintiff from moving the court to examine them on oath, or deprive her of her right of challenge. Pub. Sts. c. 170, § 35. As she did not avail herself of the means of inquiry afforded her by the statute, she is not entitled to a new trial, as matter of law, notwithstanding her ignorance that one of the jurors was a taxpayer in Lowell until after the verdict. Woodward v. Dean, 113 Mass. 297. Smith v. Earle, 118 Mass. 531. Wassum v. Feeney, 121 Mass. 93.

Fxceptions overruled.