Partridge v. Middlesex & Boston Street Railway Co.

108 N.E. 918, 221 Mass. 273, 1915 Mass. LEXIS 794

• Court: Massachusetts Supreme Judicial Court
• Decided: May 21, 1915
• Status: Published

Opinion

Pierce, J.

It is alleged in the bill of exceptions that while the plaintiff was driving a horse attached to an express wagon along Main Street in Cochituate it became "frightened by the loud and continuous ringing of a gong on a car operated by an employee of the defendant coming up behind him,” and that as a result the horse shied, throwing the plaintiff out of the wagon and injuring him.

The mere ringing of a gong on an electric car in a public street is not in itself negligence. Henderson v. Greenfield & Turner’s Falls Street Railway, 172 Mass. 542. When the noise of such ringing is alleged to have frightened a horse, the plaintiff, to recover damages for injury resulting therefrom, must establish that the noise was unusual, unnecessary and likely to frighten horses, or that the motorman knew or ought to have known of the manifestation of fright in season to make reasonable effort to diminish it and failed so to do; Ellis v. Lynn & Boston Railroad, 160 Mass. 341; or that the motorman in the use of the gong was reckless or wanton to a degree that indicated disregard of the plaintiff’s safety in the street. Aiken v. Holyoke Street Railway, 184 Mass. 269.

The case was submitted to the jury “under proper instructions,” and a verdict was rendered for the defendant.

During the course of the trial the defendant offered in testimony interrogatories numbered 11, 12, 13, 14, and the answers thereto contained in a deposition. The plaintiff objected to the introduction of this testimony on the ground that the questions were leading and called for conclusions. The testimony was admitted and exceptions thereto were saved, although informally taken. Exceptions were saved to all the questions because leading.

The admission of leading questions in this Commonwealth rests in the discretion of the presiding judge and is not subject to revision or exception. Moody v. Rowell, 17 Pick. 490, 498. York v. Pease, 2 Gray, 282, 283. Green v. Gould, 3 Allen, 465. Francis v. Rosa, 151 Mass. 532, 535. And, were it to be held that the exercise of such discretion is to be confined to reasonable limits, there is nothing to justify the conclusion that such bounds were overstepped in the present case. See Commonwealth v. Dorr, 216 Mass. 314, 318.

Moreover, as to interrogatories 11, 12 and 13 the witness’s personal knowledge of the horse’s manifestation of fright was or might be a material issue, — an issue quite distinct and distinguishable from that reasonable cause to know which a jury may impute to a man placed as this man was. Jeddrey v. Boston & Northern Street Railway, 198 Mass. 232. Ahearn v. Boston Elevated Railway, 194 Mass. 350.

The objection that the answers to the questions involve conclusions of fact is not tenable. So far as they do, such result is not objectionable because any canon of evidence is violated. The principle upon which such testimony is admissible is clearly stated in Commonwealth v. Sturtivant, 117 Mass. 122, and Whittier v. Franklin, 46 N. H. 23.

Exceptions overruled.