Whitman v. Boston Elevated Railway Co.

63 N.E. 334, 181 Mass. 138, 1902 Mass. LEXIS 804

• Court: Massachusetts Supreme Judicial Court
• Decided: April 1, 1902
• Status: Published

Opinion

Holmes, C. J.

Whether the plaintiff was negligent or not did not depend upon the plaintiff’s judgment but upon that of the jury, whose duty it was to decide whether he showed the caution which a man of ordinary prudence would observe. Therefore from that point of view the excluded evidence was immaterial. Commonwealth v. Pierce, 138 Mass. 165, 176.

The question excluded did not seek to bring out a portion of the surrounding facts which could not be stated adequately in detail and which therefore needed to be summed up in some general phrase, as often happens. The external situation sufficiently appeared.

Again there was no question as to what the plaintiff knew about the situation.

The only material fact that we can think of that possibly might have been conveyed by the plaintiff’s answer is that he did not get himself run down on purpose. But it does not appear that the defendant charged him with intentionally bringing about the accident, or that the question had any such matter in view. If it was thought necessary to deny intention, a question easily could have been framed that would have been free from objection. Unless it was argued that the plaintiff did intend to get himself run down, his own judgment of the facts sufficiently appeared by what he did. He was allowed to testify that he formed a judgment. See Missouri, Kansas & Texas Railway v. Miller, 8 Tex. Civ. App. 241, 246.

Exceptions overruled.