Powers v. Boston & Maine Railroad

56 N.E. 710, 175 Mass. 466, 1900 Mass. LEXIS 800

Opinion

Hammond, J.

1. We do not see that the plaintiff was prejudiced by the exclusion of the questions to Gould. It does not appear what the plaintiff expected to prove by the answers, but even assuming that the answers would have tended to support the plaintiff’s case, there was no offer to show that the condition of the step for a month before or a week after the accident had been practically the same. The judge in the exercise of his discretion might properly exclude the evidence at that stage of the case. If the subsequent evidence, especially that of Barrett, tended to show that the condition of the step was practically the same for a month before or a week after the accident, the plaintiff should have renewed the offer. Not having done that, he has no cause of complaint.

2. The testimony of the witness Barrett was as to the condition of the step on the day of the accident, and was plainly admissible.

3. The rule of due care laid down by the court is to be interpreted with reference to the circumstances, one of which was the fact that the plaintiff was an experienced brakeman, and it was correct.

The plaintiff has not argued his exception to the other portions of the charge, and we do not further notice them, except to say that in substance the court followed the law as laid down in the decisions of this court. Johnson v. Boston Tow-Boat Co. 135 Mass. 209, and cases there cited. Moynihan v. Hills Co. 146 Mass. 586. Murphy v. American Rubber Co. 159 Mass. 266.. Young v. Boston & Maine Railroad, 168 Mass. 219.

Exceptions overruled«