MINIHAN v. BOSTON ELEVATED RAILWAY

Interrogatories. Practice, Civil, Exceptions. Negligence. Street Railway. Res ipsa Loquitur. Evidence, Presumptions and burden of proof.

In an action of tort against a corporation, if the president of the defendant has refused to answer certain interrogatories filed by the plaintiff, on the ground that the questions contained in them are not material to the issues in the case, the refusal of the defendant's president to answer the interrogatories, whether justified as matter of law or not, is not for the consideration of the jury, and a ruling allowing the plaintiff to read the questions and the refusals to the jury is erroneous.

In an action of tort against a corporation, where the presiding judge, against the defendant's exception, erroneously has allowed the plaintiff to read to the jury refusals of the defendant's president to answer certain interrogatories on the ground that they are immaterial, and the plaintiff in his argument to the jury comments on these refusals as indicating a desire on the part of the defendant not to disclose material evidence which it could disclose, if the defendant in its argument to the jury attempts to justify the refusals, this does not waive its exception to their admission as evidence, it being obliged to argue the case on the evidence which has been admitted.

In an action against a corporation operating a street railway for personal injuries, if it appears that the plaintiff's injuries were caused by a car of the defendant in which the plaintiff was a passenger leaving the rails near the edge of an embankment seven feet high, going off the bank and turning over on its side in a street below, and this accident is unexplained, the doctrine of res ipsa loquitur applies, an inference being justified that the defendant was at fault, and this inference being the same if the car was in good condition at the time of the accident.

In an action against a corporation operating a street railway for personal injuries caused by a car of the defendant in which the plaintiff was a passenger leaving the rails near the edge of an embankment seven feet high, going off the bank and turning over on its side on a street below, where the accident was unexplained, the plaintiff put in evidence the answers of the defendant's president to interrogatories filed by the plaintiff containing testimony that the car had been inspected shortly before the accident and was in good condition. There was no evidence in the case in addition to the answers to the interrogatories except the fact of the accident. The defendant asked the judge to instruct the jury that there was no evidence of negligence on the part of the defendant or of its servants or agents in regard to the inspection of the car, and that there was no evidence from which the jury would be warranted in finding the existence of any defect in the car or its apparatus at the time of the accident. Held, that these instructions should have been given, not because the plaintiff was estopped to contradict the answers of the defendant's president in regard to the inspection and good condition of the car, but because no such evidence in contradiction was introduced, and the happening of the accident, although evidence of negligence of some kind on the part of the defendant, was not evidence of negligence in failing to keep the car in good condition.

LORING, J.

1. The refusal of the president of the defendant railway company to answer interrogatories 4, 5, 6 and 7 was the assertion of a right based on a question of law.

It happened that he was right in his refusal to answer these interrogatories, that is to say, he was right on the question of law raised by him. The plaintiff did not declare on negligence in employing an incompetent conductor or motorman, and for that reason these interrogatories were not material.

But the fact that the president of the defendant company was right is of no consequence in this connection. Right or wrong, his refusal to answer an interrogatory based on a question of law was a matter for the court and for the court alone; it was not a matter for the consideration of the jury, much less was it a matter from which the jury ought to have been allowed to draw an inference of fact. It is the right of either party to an action in court to raise any question of law he may deem wise. In case he does so, the sole question is whether the point of law is well taken. That (as we have said) is a question for the court and for the court alone. It is for this reason that the practice has obtained of arguing questions of law in the absence of the jury when the discussion in their presence would be apt to mislead them in determining the issues of fact to be decided by them.

The exceptions taken to the ruling allowing the plaintiff's counsel to read to the jury the refusal by the defendant's president to answer interrogatories 4, 5, 6 and 7 were not waived by the argument to the jury made by counsel for the defendant. After the refusal of the defendant's president to answer these interrogatories had been read to the jury as evidence for their consideration there was nothing left for counsel to do but to argue the case on the evidence which had been admitted.

These exceptions must be sustained.

2. The exceptions taken to the refusal to give the ninth, tenth and eleventh rulings asked for must be overruled.

The defendant's contention here is that by putting in evidence the answers of the defendant's president to interrogatories 10 and 11 the plaintiff's case must be taken to admit that the car was in good condition; and if the car was in good condition there is a partial explanation, and for that reason the rule of res ipsa loquitur does not apply. If there had been a binding admission by the plaintiff that the car was in good condition the effect of the rule of res ipsa loquitur would not have been lessened.

What is meant by the statement that res ipsa loquitur applies where there is no explanation by the defendant (Feital v. Middlesex Railroad, 109 Mass. 398, Savage v. Marlborough Street Railway, 186 Mass. 203, Hebblethwaite v. Old Colony Street Railway, 192 Mass. 295) is that this rule applies where the defendant does not show what caused the accident. Had the evidence that the car had been inspected and found to be in good order been coupled with evidence that the same was true of the track and that the conductor and motorman had exercised due care, there would have been no explanation of how this accident occurred.

Again, the rule of res ipsa loquitur means that in the ordinary experience of mankind the accident would not have happened without fault on the part of the defendant. Holmes, J., in Pinney v. Hall, 156 Mass. 225, at pp. 225, 226. See also Braley, J., in Hofnauer v. R.H. White Co. 186 Mass. 47, 49. A car ordinarily does not leave its track and roll down an embankment unless something is wrong, and that is as true when the car is in good condition as when it is not.

3. We are of opinion that the exception to the refusal to give rulings 17 and 20 must be sustained. Not however on the ground that the fact that the car was in good condition became a fact in the case as if it had been admitted in the pleadings. Where a plaintiff puts in the defendant's answer to interrogatories he does not thereby bind himself to the truth of the facts therein stated. He could contradict the facts there stated by evidence. But until contradicted by evidence, the truth of the facts stated stands as against the plaintiff who puts in the defendant's answers. In the case at bar there was no evidence in addition to the answers to interrogatories, but the fact of the accident; and in our opinion the fact of the accident is not evidence which warrants a finding that the car was not in good condition, and the plaintiff's evidence that it was in good condition is not overcome.

Exceptions sustained.