Neal v. City of Boston

36 N.E. 308, 160 Mass. 518, 1894 Mass. LEXIS 313

• Court: Massachusetts Supreme Judicial Court
• Decided: February 27, 1894
• Status: Published

Opinion

Morton, J.

1. From the questions put by the judge to the counsel for the plaintiff, and his answers, it appears that one object at least in asking what was the condition of the depression as to snow and ice during the previous winter was to show that there were snow and ice there for more or less continuous periods at different times. That the judge understood that to be in substance the offer would, seem to be indicated by his reply, or at least is fairly to be inferred from it. He said that he had allowed it to be shown that the form of the depression was such that ice and snow would accumulate there, but he did not think it admissible to show that “ snow and ice were there, actually there on those occasions in some form.” The counsel for the plaintiff not only did not dissent from this view of what he had offered to show, but seems to have acquiesced in it, and to have excepted to the ruling as thus made. The ruling was clearly correct, according to this understanding of the offer; and we do not think that the plaintiff is now entitled to argue, upon a ground riot called to the attention of the court, that the evidence was admissible. Wheeler v. Rice, 8 Cush. 205. Hamilton Woollen Co. v. Goodrich, 6 Allen, 191. Brown v. Leach, 107 Mass. 364. If this view of the course of the trial is erroneous, as it may be, it results from the imperfect manner in which the question is presented by the plaintiff in his exceptions.

2. It was admitted that by the question put to the witness, “Is there anything which causes you to remember particularly the condition of that walk on that day ? ” the purpose was to show that she remembered it because she slipped on the ice in the depression. The fact that she slipped was also admitted to be incompetent of itself to affect the defendant’s liability. The question was not generally whether the attention of the witness was particularly directed to the depression, and whether she made a particular examination of it. It is expressly stated in the exceptions that the witness was not precluded from stating the extent and particularity of the examination which she made. We think that, under the circumstances, it was within the discretion of the court to exclude the question as put.

3. If the police officer was not able to remember specifically the condition of the sidewalk on the day of the accident, but was able to remember its condition between certain dates which included the day of the accident, it was competent for him so to testify. The weight of the testimony was for the jury, and how far each side of the day of the accident the limit should extend was for the court, in the exercise of a reasonable discretion, to decide. We cannot say that its discretion was not reasonably exercised, though the limit might perhaps without injustice have been made shorter.

.Exceptions overruled.