Hayes v. Pitts-Kimball Co. , 183 Mass. 262 ( 1903 )

Kkowltok, C. J.

This is an action to recover for an injury to the plaintiff’s intestate, a boy five years of age, which caused his death a few hours afterwards. The declaration is in two counts, one to recover the damages of the deceased from conscious suffering before his death, and the other to recover under the St. 1898, c. 565 (R. L. c. 171, § 2) for his death.

The first exception relates to the admission of evidence. The plaintiff was allowed to introduce the statements of the deceased in conversation at different times after the accident, for the purpose of showing that he was conscious. We have no doubt that this testimony was competent. His remarks were verbal acts which tended to show his condition. The evidence was limited by the judge strictly to this purpose, and it was not of a kind that bore upon other issues in the case. The principle on which its admission rests is well established. Hatch v. Fuller, 131 Mass. 574. Commonwealth v. Jardine, 143 Mass. 567. Lane v. Moore, 151 Mass. 87. Shailer v. Bumstead, 99 Mass. 112. Earle v. Earle, 11 Allen, 1.

Declarations of the grandmother of the plaintiff’s intestate, who was with him at the time of the accident, made soon after the accident, were admitted under the St. 1898, c. 535 (R. L. c. 175, § 66), she having since deceased. The defendant contended that the witness could not be permitted to testify unless he could give her exact words, but the judge ruled that he might state the substance of what she said, and the defendant excepted. This statute has been construed liberally. Stocker v. Foster, 178 Mass. 591. Brooks v. Holden, 175 Mass. 137. Dixon v. New England Railroad, 179 Mass. 242. O'Driscoll v. Lynn & Boston Railroad, 180 Mass. 187. Green v. Crapo, 181 Mass. 55. In no case has it been held that the testimony is to be received only when the witness can give the exact words of the deceased person whose declaration is material. Such a construction of the statute would often exclude important evidence which the Legislature intended to make admissible. Indeed, it seldom happens after the lapse of any considerable time that a witness can give the exact words of another, unless they were very few. The ruling was in accordance with the usual practice when a conversation is put in evidence, and we are of opinion that it was right.

The other exceptions relate to the refusal of the judge to give certain instructions requested. There was plenary proof of negligence on the part of the defendant’s servant. We are also of opinion that the evidence well warranted a finding that his negligence was gross. It tended to show that immediately after a woman and a boy five, years of age had left the elevator on the third floor, he started his elevator upward without closing the door of the elevator well, and that the boy caught hold of the floor of the elevator and hung there for a time while the elevator was moving up and down, until he fell down the elevator well. The judge rightly refused to rule that there was no evidence of his gross negligence.

The only evidence tending to show that the boy’s grandmother was not in the exercise of due care, was the fact that the boy followed the other woman out of the elevator at the third floor. We cannot say as a matter of law that this fact shows a want of due care on her part. She had no reason to suppose that there was any great peril in his stepping out at that floor. She had no reason to suppose that the elevator would be moved up or down before the door of the elevator well was shut. We are of opinion that it was a question of fact for the jury whether due care required her to make it impossible for the boy to step out when the other woman did.

In its requests for rulings on the question of the care of the grandmother, the defendant singled out certain parts of the evidence, and as to each asked an instruction that, on a supposed finding, she would not be in the exercise of due care. We are of opinion, in the first place, that the judge was not obliged to give instructions upon either of these possible views of a part of the evidence. He well might leave the jury to determine the question upon a proper consideration of all the evidence. But the judge referred to these matters, and left them all to the jury as proper for their consideration on the question whether the grandmother was in the exercise of due care. We are of opinion that he was right in declining to give either the tenth, eleventh, twelfth or thirteenth rulings requested, in the terms in which they were respectively expressed.^* The instructions upon this part of the case were correct and sufficient.

Exceptions overruled.

* The rulings requested, by the defendant above referred to were as follows : 10. There being no evidence that the plaintiff’s intestate was ever allowed to go about by himself, the fact that the grandmother allowed him to leave the elevator by himself is evidence that she was not in the exercise of due care. 11. If the jury find that the grandmother allowed the plaintiff’s intestate to leave the elevator unattended because she was not at that time paying sufficient attention to his custody so that she could control his movements, this is evidence of a want of due care on the part of the grandmother, 12. If the grandmother allowed her attention to be diverted from the care of the boy and this was one of the causes of his injury, this was such a want of due care as will prevent a recovery by the plaintiff. 13. Allowing the boy to leave the elevator unattended was some evidence of negligence on the part of the grandmother.