Merrill v. Eastern Railroad

29 N.E. 666, 139 Mass. 252, 1885 Mass. LEXIS 77

Opinion

W. Allen, J.

It was not incumbent upon the plaintiff to' prove that the deceased was in the exercise of due care. Commonwealth v. Boston & Lowell Railroad, 134 Mass. 211. No distinction in this respect can be made between an indictment and an action of tort, under the Pub. Sts. a. 112, § 212.

The witness Prescott might have noticed many things which would have been competent upon the questions whether the car stopped, and whether the station was called in the hearing of the deceased, before the express train passed. The question put to him, if it called for a statement of what he noticed, was broad enough to cover material and immaterial facts. The only objection made to it — that the witness was not in the same car with the deceased — was properly overruled. It does not appear, from the meagre report of the testimony of the witness, that the court erred in not rejecting the answer to the question. If passengers left the car, and the door was closed after them before the express train passed, the circumstance was part of the occurrence proper to be considered by the jury upon the question whether the car had stopped.

The testimony of Mrs. Symonds was clearly competent.

The testimony of the witness Gibney was to the effect that she heard the station called, and that, after that, she got out of the car and the express train passed. The objection is, that her testimony that she heard the station called was not competent to prove that it was called in the hearing of the deceased. In the charge, the attention of the jury was called to the evidence as to the position of the witness in relation to the car in which the deceased was, and they were instructed, on this question, that it was immaterial whether the station was called, unless it was called on the car where the deceased was, or in his hearing. We think this was sufficiently guarded. The evidence was competent upon the question whether the train stopped, and the jury were required to disregard it upon the other question, unless they found that it was within the hearing of the deceased. Exceptions overruled.