Negligence, In use of highway. Automobile. Evidence, Relevancy and materiality. Practice, Civil, Exceptions, Judge's charge.
In an action against a street railway corporation for damage to an automobile of the plaintiff from being run into by a car of the defendant when the automobile was stalled on a single track of the defendant's railway, where it appears that the plaintiff had backed his car from his garage across the sidewalk and upon the defendant's track when the engine stopped working and the automobile stood still until it was struck by an approaching car of the defendant, it is proper for the presiding judge to refuse to allow the plaintiff's counsel to ask the plaintiff, referring to the time when his automobile was stalled, whether he expected that the motorman was going to stop his car and whether he had reasonable cause to believe that the motorman would stop his car; as, after the automobile was stalled, the plaintiff's expectation and the reasonableness of his belief as to what the motorman would do could not have affected the plaintiff's conduct, still less the conduct of the motorman, and therefore are wholly immaterial.
An exception to a portion of a judge's charge, which refers to certain arguments and the evidence on which they were based, cannot be sustained where the arguments referred to and a part of the evidence are not before this court.
De COURCY, J.
The collision occurred in front of the plaintiff's garage on Elliott Street in Beverly, where the single track of the defendant was located about four feet from the sidewalk. From the garage or sidewalk there was an unobstructed view of Elliott Street as far as Rantoul Street, where the electric car made the last stop before the accident; and from that street to the place of the collision the car was running at a moderate rate of speed. The plaintiff backed his automobile out of the garage and across the sidewalk; and as the rear wheels reached the short runway at the curb the engine "stalled," and the automobile came to a stop on the track, where it was struck and damaged by the approaching electric car. There was a verdict for the defendant, and the case is here on exceptions relating to evidence, to the refusal to give certain rulings, and to the judge's charge.
1. The questions as to the plaintiff's expectation that the motorman would stop his car were rightly excluded. At the time referred to the automobile was at a standstill on the track, and nothing was done or omitted by the plaintiff in reliance on the motorman's conduct; so that the evidence offered could have no bearing on his due care. Manifestly it was not relevant on the issue of the defendant's negligence. The fact that a person before taking a certain course of action formed a deliberate judgment as to the safety of so doing has been considered in some cases to be relevant to the issue whether he acted as a reasonably prudent person would act under those circumstances. But these decisions have no application under the facts here disclosed. Whitman v. Boston Elevated Railway, 181 Mass. 138. McCrohan v. Davison, 187 Mass. 466. Ahearn v. Boston Elevated Railway, 194 Mass. 350. Jeddrey v. Boston Northern Street Railway, 198 Mass. 232. As the plaintiff's expectation that the motorman would stop was immaterial, yet more so was his opinion that he had reasonable cause to entertain such an expectation. The evidence as to the value of the automobile related to the issue of damages, and the verdict for the defendant renders this exception immaterial.
2. The first ruling requested could not properly have been given without the qualification made in the charge. Sheehan v. Boston Northern Street Railway, 215 Mass. 463. Clearly the fifth ruling was refused rightly, as the burden was upon the plaintiff to prove to the satisfaction of the jury the facts to which his witnesses testified and the inferences he sought to have drawn therefrom; and the judge could not direct the jury to decide that they were proved affirmatively. Giles v. Giles, 204 Mass. 383.
3. In the absence of the arguments referred to, and with only part of the evidence before us, we cannot say that the portion of the charge to which objection was made was not pertinent.
Exceptions overruled.