O'Leary v. Boston Elevated Railway Co.

The plaintiff alleges two exceptions, the first to the striking out by the court of an answer given by her on redirect examination, and the second to the refusal of the court to give a ruling requested by the plaintiff.

1. As to the striking out of the answer. The question and answer were as follows :

“ Q. If you saw the car coming just before you stepped along to go over the tracks on which the car was, why didn’t you keep out of the way of the car ?

“ A. I moved out of the way, and then it came swifter and knocked me down.”

The answer was excluded by the presiding judge as not responsive to the question. So far as the answer bore upon the question of the due care of the plaintiff, it has become immaterial by the finding of the jury that the plaintiff was in the exercise of due care. So far as it bore on the question of the negligence of the motorman the statement that the car “ came swifter ” added nothing to what the plaintiff had said previously *65upon the stand, and hence even if the answer was responsive its exclusion is not shown to have been harmful to the plaintiff.

But the decisive answer to this exception is that as a result of a colloquy of considerable length, in which the judge and the counsel on each side participated, the counsel for the plaintiff was allowed to go all over the matter in detail as much as he pleased, but he declined to avail himself fully of the privilege. For this reason the exception must be overruled.

2. As to the ruling requested. The request singled out only some of the facts bearing upon the questions of the plaintiff’s due care and the defendant’s negligence. The judge was not bound to make the selection in the language of the request. The charge was specific and full enough upon these questions.

.Exceptions overruled.