Robinson v. Fitchburg & Worcester Railroad

Bigelow, J. Upon consideration of the several exceptions insisted on by the plaintiff at the bar of this court, we see no sufficient ground for disturbing the verdict rendered in favor of the defendants in the court below. 1. Evidence of the existence of a private crossing at the place of the accident, prior to the construction of the railroad, and also subsequently to the time of the injury to the' plaintiff, seems to have been excluded on the ground of its irrelevancy. The precise question at issue was .the state and condition of the place at the time when the collision took place, and whether there was then a crossing in use over the track of the railroad, which would require a greater degree of caution in the exercise of due care by the servants of the defendants, than at other places on their road, where no crossing existed. This the plaintiff' was allowed very fully to show. Now, without deciding that proof of a certain state of facts or condition of things, prior and subsequently to a particular occurrence, would not be admissible and competent as leading to a just inference of their existence at the time when the occurrence took place, it seems to us that, in the present case, there is nothing in the bill of exceptions, which shows that the evidence excluded was so material and relevant to the subject matter which the plaintiff sought to establish, as to render its rejection a valid ground of exception. Many questions relating to the materiality and relevancy of proof to the issue on trial necessarily address themselves very much to the sound discretion of the presiding judge. He only can best determine whether evidence is collateral or unimportant; having before him all the facts in proof. A court of error will not therefore revise his decision upon such questions, except in cases where manifest mistake is shown. Parmenter v. Coburn, 6 Gray, 510. 2. Evidence of specific acts of negligence and carelessness on the part of the engineer, in running the train on other occasions than the one in question, was clearly incompetent. It would not only lead to collateral inquiries, and so distract and mislead the jury from the true issue before them, but it had no legal or logical tendency to prove the point in issue. Because a man [96] was careless or negligent of his duty in one or two specified instances, it does not follow that he was so at another time ana under different circumstances. Collins v. Dorchester, 6 Cush. 396. The plaintiff did not offer to prove the general character of the engineer for care and skill in his business. Such testimony would certainly have been less objectionable, though not perhaps competent. 3. The inquiry of the witness, as to the mode of approach to the wood pile, sought for his opinion on a matter which bore directly on the question of the use of due care by the plaintiff at the place of the accident. It was therefore incompetent. All the facts bearing on the locality, and the means of access to it, being laid before the jury, it was their province to decide whether there was any other mode of approach which a person of ordinary prudence could take. In determining this question, they could not be properly aided by the opinions of witnesses. 4. The plaintiff, having been permitted to give in evidence the admissions of the president of the defendant corporation in the course of the tidal, cannot now object that this evidence was excluded when it was first offered by him. The order of proof is always within the discretion of the judge presiding at the trial, and his exercise of this discretion is not open to exception. The plaintiff has had the full benefit of the evidence offered by him, it having been laid before the jury in the course of the trial; and it is therefore quite immaterial that it was not admitted at the time when it was first offered. 5. The admissions and statements of the engineer, after the accident, were inadmissible. The defendants were not in any way bound by his confessions. They were not within the scope of the engineer’s agency for the defendants, and were made some days after the accident. They were therefore only the declarations of a third person, and incompetent, as being merely hearsay evidence. 6. The evidence of the president of the corporation, who employed the engineer, that he was hired by him as skilful and competent, was relevant and material, in answer to the ground [97] assumed by the plaintiff as a foundation for his right of recovery ; which was, that the engineer was employed by the corporation with a knowledge that he was unskilfdl, and at low wages. As distinct and substantive proof in defence of the case, we think it would have been liable to objection ; but it is quite clear that it was competent in answer to the case alleged and attempted to be proved by the plaintiff. 7. The statement of the president of the corporation, that he thought the defendants would give the plaintiff something, was not a declaration which, in its nature, could be binding on the defendants, or in any way affect the right of the plaintiff to recover in this suit. It was, at most, a mere expression of private opinion, and wholly immaterial. It necessarily implied a want of authority in the witness to act for the corporation in regard to the claim of the plaintiff for damages, and implied that the corporation would take action for themselves on the subject. 8. The letter written by the plaintiff to the defendants was rightly rejected. The vote to lay it on the table was equivalent to a refusal to act upon it. The letter of the plaintiff was not competent therefore, as connected with any act or admission of the defendants, and was, in effect, only his naked declaration. 9. The remaining objections to the rulings of the court as to the offer and rejection of evidence are either clearly immaterial, or wholly untenable, as falling within the scope of the proper discretion of the judge in regulating the order of proof, except that which has reference to testimony bearing on the question of damages. This last, it is unnecessary to consider; because the plaintiff, having failed to establish his case on the merits and to show any claim for compensation, cannot be aggrieved by any nding relating to damages merely. 10. The burden of proof was clearly on the plaintiff to show want of due care on the part of the defendants, as well as” the exercise of ordinary care by himself at the time of the accident. Lane v. Crombie, 12 Pick. 177. Adams v. Carlisle, 21 Pick. 146, Carsley v. White, 21 Pick. 255. Exceptions overruled.