Evidence, Competency. Witness, Redirect examination. Practice, Civil, Exceptions.
At the trial of an action against a street railway corporation for personal injuries from being run down by a car of the defendant when the plaintiff was at work upon a highway as a laborer, a witness was called by the defendant who was on the front platform of the defendant's car when it struck the plaintiff. The plaintiff cross-examined the witness in regard to a paper signed by the witness on which he had filled in written answers to printed questions, but the plaintiff asked no questions in regard to the contents of the paper and did not call for the paper nor inspect it. On redirect examination by the defendant the witness testified that after the accident his name was taken by the conductor and that a few days later he received by mail from the office of the defendant a blank with printed questions, that he filled in the answers, signed the paper and sent it back to the defendant. The defendant then offered the paper in evidence. The plaintiff objected to its admission and stated that he should make no reference to it in his argument. The answers of the witness contained in the paper tended strongly to show that the plaintiff's injuries were due to his own negligence. The presiding judge admitted the paper under an instruction which did not forbid the jury to consider the statements which were prejudicial to the plaintiff. The jury returned a verdict for the defendant, and, on exceptions alleged by the plaintiff, it was held, that the admission of the paper was an error injurious to the plaintiff and that the exceptions must be sustained.
Upon a bill of exceptions alleged by the plaintiff in an action for personal injuries after a verdict for the defendant, it appeared that a paper injurious to the plaintiff had been admitted in evidence improperly, but the bill of exceptions contained no statement of the evidence given in behalf of the plaintiff nor any statement that there was such evidence, and the defendant contended that the plaintiff could not have been harmed by the admission of the paper as there was nothing to show that he was entitled to have his case go to the jury. The bill of exceptions, however, showed that the judge gave instructions to the jury in a charge and contained a statement that "the jury found for the defendant." Held, that it must be inferred that the case was left to the jury, which was in effect a ruling by the presiding judge that there was evidence for the jury to consider in favor of the plaintiff as well as against him, and that the ruling properly could be considered by this court as showing that evidence for the plaintiff existed on which the ruling was based.
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.