Flaherty v. Boston & Northern Street Railway Co. , 210 Mass. 321 ( 1911 )

Sheldon, J.

The paper introduced in evidence by the defendant on the re-examination of its witness was incompetent. It is not contended that it was admissible on any, other ground than by reason of the references made to it in the cross-examination of the witness. But the plaintiff’s counsel had raised no question as to its contents; he had not called for it or inspected it; he disclaimed any intention of referring to it in argument. We have examined all the decisions relied on by the defendant’s counsel, and none of them affords any authority for its admission under the circumstances of this case. See the discussions in Boyle v. Boston Elevated Railway, 208 Mass. 41, 43, and Commonwealth v. Tucker, 189 Mass. 457, 479, et seq.

The bill of exceptions recites that there was other evidence of want of due care on the part of the plaintiff and of the absence of negligence on the part of the defendant, and does not show that there was any evidence in support of the plaintiff’s case. Indeed, it sets out none of the evidence given in behalf of the plaintiff, either by recital or otherwise. For this reason it is contended that the plaintiff could not have been harmed by the admission of the paper, since there is nothing to show that he was entitled to go to the jury at all. It does appear however that the jury found for the defendant, and it does not appear and has not been suggested that the verdict was ordered by the judge. We must infer that the case was left to the jury and this was in effect a ruling, that there was evidence for the jury to consider in favor of the plaintiff as well as against him. This may be considered by this court, just as the statements made by the judge in his charge to the jury were considered in Botkin v. Miller, 190 Mass. 411, 415.

The contents of the paper tended strongly to show that the plaintiff’s injury was due to his own negligence. We cannot say that he was not prejudiced by its admission; and what the judge said to the jury did not prevent them from considering the account of the accident given therein. The ruling that the jury could not consider the answer to one question contained in the paper, the answer to which could not affect the case, was not sufficient to prevent them from considering the highly prejudicial statements made in the other answers.

Exceptions sustained.