Mahoney v. Boston Elevated Railway Co.

99 N.E. 960, 213 Mass. 196, 1912 Mass. LEXIS 701

• Court: Massachusetts Supreme Judicial Court
• Decided: November 27, 1912
• Status: Published

Opinion

Rtjgg, C. J.

This is an action of tort to recover for the death of the plaintiff’s intestate, a child too young to be capable of exercising care for her own safety, caused by the negligence of the defendant’s servants or agents in charge of its cars. Certain evidence tending to show carelessness on the part of the mother, who was in charge of the plaintiff’s intestate, was admitted subject to the plaintiff’s exception. It is not necessary to discuss the competency of the evidence for it is plain that even if wrongly received the plaintiff has suffered no harm. The verdict was in his favor. The jury must have found that the mother exercised due care. The evidence had no bearing on the question of damages, and hence could have had no effect on the verdict and could not have injured the plaintiff. Todd v. Boston Elevated Railway, 208 Mass. 505.

It was proper to exclude the question asked in the cross-examination of a witness called by the defendant: “What have you noticed as to cars going along that particular stretch?” referring to the place of the injury. The defendant (if other elements of liability were established) was bound to respond in damages to be determined solely with reference to the degree of culpability of its servants in charge of its car on the particular occasion in question, without regard to other instances of care or culpability.

Exceptions overruled.