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The witness was allowed to make the fullest | v. Boston Elevated Ry. Co., 206 Mass. 75, 91 use of it for the purpose of aiding him in N. E. 998, 30 L. R. A. (N. S.) 737. giving his testimony, and it does not appear that the paper was competent for any purpose. Gurley v. Springfield St. Ry. Co., 206 Mass. 534, 92 N. E. 714.
 8. The defendant's tenth request, to the effect that there could be no recovery if the plaintiff's injury "was the result of an accident which occurred without the negligence of the defendant," was given in substance.
 9. The prayer to the effect that where "witnesses of equal candor, fairness and intelligence, testify with equal opportunity and knowledge and memory, and their testimony is in all respects of equal weight and credibility and there is a conflict as to facts which cannot be reconciled, the number of witnesses then constitutes preponderance and the verdict should be in harmony with the greater number of witnesses," although taken in substance from the opinion in Madden v. Saylor Coal Co., 133 Iowa, 699, 111 N. W. 57, was refused properly under the circumstances of this case. It was not applicable to the facts for the reason that the witnesses did not have equal opportunity for observation. The vation. The number of witnesses testifying in general to the same effect is an important factor to be taken into account by the jury, but other circumstances affecting the weight to be given to testimony are to be considered also.
 6. The instruction to the jury to the effect that if "the plaintiff, in an honest effort to lessen the injurious effects of the accident, used due care in applying for treatment of the wound on his knee to a reputable physician, the defendant is responsible in damages for the injuries that resulted to the plaintiff from the defendant's negligence, even though such injuries were aggravated by an accidental and mistaken, but honest, treatment on the part of said physician," was not error. This is in substance the rule which has been laid down in our own cases. Eastman v. Sanborn, 3 Allen, 594, 81 Am. Dec. 677; McGarrahan v. N. Y., N. H. & H. R. R. Co., 171 Mass. 211, 50 N. E. 610; Hunt v. Boston Terminal Co., 212 Mass. 99, 98 N. E. 786. It prevails generally.1 The ground for the rule is that the plaintiff is bound to exercise reasonable care for his own safety after the injury. If the injury is serious enough to require the attendance of a physician, he is bound to use the caution of the ordinarily prudent person in choosing the physician and in following his instructions. If an honest mistake is made by a doctor wisely selected, that is regarded as one of the incidents of the tortious act of the defendant. The injured person cannot with justice be required to insure for himself the most skillful medical attendance. Lack of skill on the part of a physician so chosen is not an independent and disconnected act, but is one which rationally may be attributed to the original tort of the defendant. The case at bar is distinguishable from Snow v. N. Y., N. H. & H. R. R. Co., 185 Mass. 321, 70 N. E. 205, and cases of like nature.  7. The instruction to the effect that in determining the amount of damages the jury might consider the amount of the plaintiff's "average earnings, his professional reputation and his special attainments in his profession" was not open to criticism. It was competent as bearing upon earning capacity to consider what his professional attainments and reputation were. They were not independent elements for the assessment of damage, and the portion of the charge excepted to did not treat them as such. Stynes
1 Reed v. Detroit, 108 Mich. 224, 65 N. W. 967; Lyons v. Erie Ry. Co., 57 N. Y. 489: Loeser v. Humphrey, 41 Ohio, 378, 52 Am. Rep. 86; Selleck v. Janesville, 100 Wis. 157, 75 N. W. 975, 41 L. R. A. 563, 69 Am. St. Rep. 906; Chicago City Ry. v. Saxby, 213 Ill. 274, 72 N. E. 755, 68 L. R. A. 164, 104 Am. St. Rep. 218; Seeton v. Dunbarton, 73 N. H. 134, 59 Atl. 944; O'Donnell v. Rhode Island Co., 28 R. I. 245, 66 Atl. 578; Hooper v. Bacon, 101 Me. 533, 64 Atl. 950; Fields v. Mankato Elec. Trac.
 10. The defendant's fourteenth request was incorrect in its original statement, but, as modified by the trial judge, stated the law rightly as adapted to the evidence. McDermott v. Boston Elevated Ry. Co., 208 Mass. 104, 94 N. E. 309.
11. The general request to the effect that the plaintiff was not entitled to recover was denied rightly. Killam v. Wellesley & Boston St. Ry. Co., 101 N. E. 374.
12. The refusal of the court to instruct the jury to disregard in considering damages the fact that the plaintiff was unable to keep his contract to write the magazine articles, was correct. ticles, was correct. As we have pointed out, this may have been regarded as a direct consequence of the injury. The physical injury and its resulting pain may have been found sufficient to prevent the intellectual effort As was said required to write the articles. by Mr. Justice Holmes in Braithwaite v. Hall, 168 Mass. 38, 40, 46 N. E. 398, 399, "To this extent the tort-feasor takes the risk of the value of what he destroys.
 13. After the verdict a motion for a new trial was filed, one ground of which was Affidavits were filed and a hearing had, upon the disqualification of a juror named Pfaff. which the trial judge found as facts that Pfaff, in October, 1906, suffered injury in his property through collision between a wagon belonging to him and a car of the defendant, for which he presented a claim to the defendant; that no settlement was made and no action brought; that before the trial of the case at bar, but after the panel appeared to be complete, the clerk inquired among other
ment to the conductor was admissible as tending to impeach his credibility.
[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1243-1245; Dec. Dig. § 389.*] 2. APPEAL AND ERROR (§ 692*)- RECORDEXCEPTION TO EVIDENCE-SUFFICIENCY.
the defendant, and that no one responded; | idence in rebuttal that he had made such statethat at no time was any motion made under R. L. c. 176, § 28, or otherwise for the examination under oath of any juror; that all the facts respecting the juror's claim against the defendant were known to the defendant through its accident records, although not to its attorney who tried the case and that "neither by reason of the said accident and claim or otherwise was the said Pfaff in any way related to either party in said cause, nor did the said Pfaff have any interest therein, nor has he expressed or formed any ` opinion or been sensible of any bias or prejudice therein; that there was no reason or objection to his serving as a juror in said case." After making these findings the court
overruled the motion for a new trial. These findings of fact must be taken as true. It cannot be said as matter of law that a juror who has against a party to an action a stale claim barred by the statute of limitations, the existence of which was within the knowledge of the objecting party, constitutes such a disqualification as requires a new trial. The motion for a new trial in the absence of evidence constituting bias or prejudice as matter of law is ordinarily within the discretion of the trial court. Woodward v. Dean, 113 Mass. 297; Com. v. Wong Chung, 186 Mass. 231, 71 N. E. 292, 1 Ann. Cas. 193. That the circumstances relied upon as creating a bias were within the knowledge of the defendant before the trial has been said to be decisive against granting a new trial. Wassum v. Feeney, 121 Mass. 93, 23 Am. Rep. 258. Failure to exercise the right to have the jurors examined before trial under the statute has been held to deprive a party of exception to a refusal to set aside the verdict for a cause which would have been revealed by such examination. Smith v. Earle, 118 Mass. 531.
14. No error is disclosed in the refusal to grant the prayers for instructions presented by the defendant on its motion for a new trial. The juror was not so incapacitated as a matter of law as to render the verdict a nullity. His own testimony as to his own impartiality was a circumstance to be considered by the trial judge, with all the other evidence, in determining the fact, Exceptions overruled.
While exceptions to the exclusion of testimony will not be sustained, unless enough aptimony was expected to be and that it was mapears to show the court on appeal what the testerial, yet where the court has no doubt as to what was expected to be proved it may sustain such exceptions.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2905-2909; Dec. Dig. § 692.*]
Exceptions from Superior Court, Suffolk County; William Cushing Wait, Judge.
Action by Anna Coolidge against the Boston Elevated Railway. Verdict for defendant, and plaintiff excepts. Exceptions sus
G. W. Anderson and E. H. Ruby, both of Boston, for plaintiff. E. P. Saltonstall, of Boston, for defendant.
HAMMOND, J. There was a collision ou a crossing of two public ways between the plaintiff and a car operated by the defendant, and the plaintiff was hurt.
The evidence as to the exact manner in which the accident happened was somewhat conflicting. The plaintiff testified in substance that she was in the daily habit of taking the car at the stopping place near which the accident happened, that seeing the car approaching from a distance and believing that she had time to cross the street, if the motorman slowed up the speed of the car as she expected he would and as it was his duty to do, she made the attempt. There were two tracks, the outward and the inward, and she had crossed the outward and was stepping over the last rail of the inward when she was struck.
 The motorman called by the defendant testified in his examination in chief that he had run "this particular trip" for a year; that the plaintiff was a regular passenger and that she generally boarded the car at this stopping place. As to the manner of the accident he testified that "he first saw the plaintiff when about half a car's length from the in-town crosswalk on which she was crossing; that she was then on the outbound track and was hurrying; that he reversed his car and stopped as quickly as he could, but not in time to prevent the accident," and that "the right-hand corner of the fender hit" her. On cross-examination. 1. WITNESSES (§ 389*)- IMPEACHMENT-IN- he denied that just after the accident he had CONSISTENT STATEMENT. In an action for personal injuries, defend-made any statement inconsistent with his ant's motorman testified that he saw plaintiff testimony as to the manner of the accident, and reversed, but not in time to prevent the ac- and especially denied that he then said to the cident, and on cross-examination denied that conductor, "I thought I slowed up enough after the accident he had said to the couctor to give her time to get by, but I didn't.” that he thought he had slowed up enough to give plaintiff time to get by, but he did not, evThe plaintiff, called in rebuttal, was asked
(214 Mass. 568)
COOLIDGE v. BOSTON ELEVATED RY. (Supreme Judicial Court of Massachusetts. Suffolk. May 23, 1913.)
if on the morning of the accident she did not | Richards, seeking among other things the hear the motorman while in the street say cancellation of a deed fraudulently obtained to the conductor, "I thought I gave her time to get by, but I didn't," or words to that effect. The question was excluded.
It should have been admitted. If the motorman made such a statement, the plaintiff might fairly argue that it was inconsistent with his testimony, and had a legitimate tendency to impeach the credibility of the witness. It was therefore material. Robinson v. Old Colony St. Ry., 189 Mass. 594, 76 N. E. 190, and cases cited.
 There was no formal offer to show what the plaintiff expected to prove. It often has been said that exceptions to the exclusion of testimony will not be sustained unless enough appears to show to this court what the testimony was expected to be, and that it was material. But as said by Allen, J., in Com. v. Smith, 163 Mass. 411, 429, 40 N. E. 189, 195: "We are reluctant to apply this rule in cases where we have no real doubt what the party offering the testimony expected to prove, even although it is not distinctly stated." In the present case in view of the testimony of Dr. Broughton and of the whole record, we can have no doubt what the plaintiff expected to prove.
We see no other error of law in the record, but for reasons above stated the order must
(214 Mass. 585)
MURPHY v. ROBINSON et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 24, 1913.)
1. DEEDS (8 76*)-FRAUD-EFFECT.
Grantees in a deed, set aside on the ground of their fraud inducing its execution, may not set up a mortgage which they acquired through their active fraud in representing it to be an invalid incumbrance, and which, if valid, would be merged by being assigned to one of the grantees.
[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 203-205; Dec. Dig. § 76.*] 2. COURTS (§ 27*)-INCIDENTAL JURISDIC
The discharge of record of an outstanding mortgage incumbrance is within the jurisdiction of the superior court, when merely incidental to a bill based on an alleged scheme to acquire title to real estate by fraudulent
[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 84-87; Dec. Dig. § 27.*]
Appeal from Superior Court, Suffolk County. Suit by Joseph P. Murphy against James E. Robinson and another. From a decree for plaintiff, defendants appeal. Affirmed.
C. W. Cushing and Geo. C. Hodges, both of Boston, for appellarts. Edwd. J. Fegan, of Boston, for appellee.
DE COURCY, J. This is a bill in equity brought by the surviving heir of Agnes F.
from her by the defendants James E. Robinson and James H. Stark. The plaintiff's right to the relief sought was settled by the former case between the same parties (Robinson v. Richards, 209 Mass. 295, 95 N. E. 790), and as the facts showing the scheme of fraud whereby James H. Stark obtained the deed, the tax title and the mortgage are set forth in the opinion in the earlier case, there is no occasion to restate them here. Saco Brick Co. v. J. J. Eustis Mfg. Co., 207 Mass. 312, 314, 93 N. E. 629. See Robinson v. Richards, ubi supra. Within a month after that decision was rendered, the defendants apparently attempted by indirection to defeat the relief indicated by this court, by undertaking to foreclose the Perry mortgage, which they had acquired by representing to Perry that it was invalid and unenforceable; and this proceeding was then brought. It is admitted by the defendants that the facts alleged in the amended bill of complaint are true.
[1, 2] The final decree was warranted by the facts. The defendants cannot now set up the mortgage which they acquired by means of their active fraud in representing it to be an invalid incumbrance, and which if valid would be merged by being assigned to the defendant Robinson, in whom the legal title then stood. If the question of the jurisdiction of the superior court is now open, it is enough to say that the discharging as of record of the outstanding mortgage incumbrance is merely incidental to a bill that is based upon an alledged scheme to acquire title to property by fraudulent means. Smith v. Everett, 126 Mass. 304; Ginn v. Almy, 212 Mass. 486, 493, 99 N. E. 276. The failure to allow the defendants for taxes paid on the property fraudulently obtained may well be due to the trial judge's opinion that the defendants were amply reimbursed by the rents and profits which presumably they have enjoyed since they extinguished the tax title in June, 1906. The decree must be affirmed; and it apearing that the appeal is intended for delay, upon the motion of the plaintiff double costs are awarded from the time when the appeal was taken. So ordered.
(215 Mass. 50)
BUCKLEY v. BOSTON ELEVATED RY. CO. (two cases).
(Supreme Judicial Court of Massachusetts. Middlesex. May 24. 1913.)
1. CARRIERS (§ 320*)-INJURIES TO PASSENGER-QUESTION FOR JURY.
In an action against a railroad company for the death of a passenger, the question of defendant's negligence held for the jury.
[Ed. Note.-For other cases, see Carriers, 1167, 1179, 1190, 1217, 1233, 1244, 1248, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1315-1325; Dec. Dig. § 320.*]
2. DEATH (§ 14*) - DEATH OF PASSENGER DEGREE OF CARE.
Under St. 1907, c. 392, giving a right of action if the life of a passenger is lost by reason of the negligence of a carrier's agents or servants, negligence means the want of care which the law requires under the circumstances disclosed in each case, and therefore, as a carrier is bound to exercise the highest degree of care consistent with its business and the safety of its passengers, it is liable for a death caused by its servants' failure to exercise such care.
[Ed. Note.-For other cases, see Death, Cent. Dig. 16; Dec. Dig. § 14.*]
3. CARRIERS (§ 287*)-CARRIAGE OF PASSENGERS-RECALL OF ÍNVITATION.
Where a passenger is not in a position to avail himself of the invitation to board a street car, the conductor may recall the invitation, implied from stopping, at any time before actually accepted.
[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1154-1159, 1161-1166; Dec. Dig. § 287.*]
[duce the report, for, if it had been done, the report would have contained names of witnesses not called by defendant, because they would have substantiated plaintiff's contention, is improper; there being no ground for such inference.
[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. 'Dig. § 296.*]
[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 294-298, 300; Dec. Dig. § 121.*]
Exceptions from Superior Court, Middlesex County; Loranus E. Hitchcock, Judge. Actions by Catherine Buckley, as administratrix, against the Boston Elevated Railway Company. There were verdicts for plaintiff, and defendant excepted. Exceptions sustained.
R. H. Sherman and Coakley & Sherman, all of Boston, for plaintiff. Hugh D. McLellan, of Boston, for defendant.
RUGG, C. J. These are two actions whereby the plaintiff seeks to recover for the conscious suffering and the death of her intestate, who received fatal injuries from a car of the defendant company.
 1. The defendant's prayer, that a verdict be directed for it in each action, was denied rightly. There was evidence from which it might have been found that the plaintiff's intestate approaching toward the rear an open car of the defendant, for the purpose of becoming a passenger, was beckoned by the conductor to a point farther forward and as he was in the act of getting
5. APPEAL AND ERROR (§ 1060*)-REVIEW-upon the car it started under such condiHARMLESS ERROR.
While it is improper for counsel to suggest in the hearing of the jury instructions to be given, the suggestion by plaintiff's counsel of an amendment to an instruction which was favorable to defendant is harmless.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.*] 6. EVIDENCE (§ 268*)-ADMISSIBILITY-HEARSAY EVIDENCE.
tions that he lost his hold and was injured. In view of these facts it is too plain for further discussion that a general verdict for the defendant ought not to have been directed. While the weight of the evidence on the printed record seems to indicate strongly that the accident happened in another way, it does not as matter of law require such a finding.
In an action against a carrier for damages  2. The defendant contends that it is for conscious suffering endured by plaintiff's intestate before his death, evidence of a declara- not liable for the death of a passenger caustion that his back was broken and that he ed by the act of a servant who is in the exwould never get any better is admissible, un-ercise of ordinary care, but fails to attain der Rev. Laws, c. 175, § 66, providing that the
declarations of a deceased person shall not be to the highest degree of care consistent with inadmissible as hearsay, if the court finds they the conduct of its business. St. 1907, c. 392, were made in good faith before the commence- under which this action is brought, is a pement of the action, to show the state of the innal statute. Jones v. Boston & Northern St. testate's mind and his mental suffering.
It gives a cause of action if the life of a passenger is lost "by reason of the negligence of its agents or servants engaged in its business." Negligence in this connection means the want of care which the law requires under the circumstances disclosed in each case. If the degree of care required is the highest consistent with the conduct of the business of the common carrier, then the negligence referred to in the statute is a failure to exercise that degree of care. Indeed, the phrase, "highest degree of care," which has come to be used commonly as expressing the duty of a common carrier to
[Ed. Note. For other cases, see Evidence. Ry. Co., 205 Mass. 108, 90 N. E. 1152. Cent. Dig. §§ 1061, 1062; Dec. Dig. § 268.*] 7. TRIAL ( 121*)—ARGUMENT OF COUNSEL SCOPE OF ARGUMENT.
In an action against a railroad company for the death of a passenger, plaintiff's counsel, in cross-examining defendant's conductor, elicited the fact that he could not tell precisely the number of witnesses upon the accident report made by him, and requested defendant's counsel to permit the witness to use the report to refresh his memory. Defendant's counsel proffered the report, if plaintiff wanted to put it in evidence, but not otherwise. Held, that as the witness did not ask for the report to refresh his recollection, and as plaintiff did not offer it in evidence, argument by plaintiff's counsel to the effect that defendant did not dare pro
wards its passengers, when accurately analyz- [ to take it." The reply was a proffer of the ed, means only that degree of caution which is reasonable in view of the relation of the parties and the fatal consequences which may ensue from breach of this duty. Donahoe v. Boston Elevated Ry. Co., 100 N. E. See Renaud v. N. Y., N. H. & H. R. R. Co., 206 Mass. 557, 560, 92 N. E. 710. The contention of the defendant in this regard cannot be supported.
report if the plaintiff wanted it to go in evidence, but not otherwise. The witness did not ask for the report for the purpose of refreshing his recollection. In his argument to the jury, counsel for the plaintiff referred to this circumstance, and argued at length that "the defendant did not dare to produce the report for the reason that if he had done so it would appear that the report contained the names of witnesses whom the defendant did not call for the reason that if they had been called they would have substantiated the plaintiff's contention as to the manner in which the accident happened.” Seasonable interruption was made and exception taken to this argument. Although requested, the court refused to rule that the argument was improper. The defendant's exceptions to this incident must be sustained. The argu
[3-5] 3. It is not necessary to determine whether the portion of the charge excepted to was inaccurate, in that it omitted to state with clearness and fullness the element that the conductor was not obliged to wait for those running from a distance and in that way expressing a desire to board the car, although not then in a position to avail themselves instantly of the invitation to become passengers held out by the stopping of the car, and that such invitation might ment was unfair and unwarranted by the be withdrawn at any time before actually accepted by a would-be passenger (Davey v. Greenfield & Turner's Falls St. Ry. Co., 177 Mass. 106, 58 N. E. 172; Duchemin v. Boston Elev. Ry. Co., 186 Mass. 353, 71 N. E. 780, 66 L. R. A. 980, 104 Am. St. Rep. 580, 1 Ann. Cas. 603), nor to determine whether the charge as given was adapted to the evidence, for the reason that at the conclusion of the charge the court further instructed the jury that “if the plaintiff's intestate attempted to board the car after it was started, the plaintiff was not entitled to recover in either action." This was sufficiently favorable to the defendant. This additional charge was given at the request of counsel for the plaintiff made in the hearing of the jury. While it is not good practice for the counsel to suggest in the hearing of the jury instructions which he is willing should be given, it cannot be said that any harmful error is disclosed in this regard.
Not only did the defendant not refuse to produce the report, but proffered it to the plaintiff on condition that it should be introduced in evidence. Under these circumstances, there was no ground for the inference that the defendant had not called all the witnesses that were named in the report, nor that it had failed to call them for the reason suggested. This is a repetition of the same argument under slightly different circumstances, which was remarked "not to have been legitimate" in Jones v. Boston & Northern St. Ry. Co., 211 Mass. 552, 555, 98 N. E. 506, 507. As was said by Chief Justice Field in McKim v. Foley, 170 Mass. 426, at 428, 49 N. E. 625: "The practice of permitting counsel to comment on the failure of the opposing party to call witnesses to facts needs to be used with caution, and such comment should be permitted only where it appears that the witnesses could have been produced, and that it is a fair in 4. There was no error in the admis- ference from the conduct of the party, under sion of the testimony to the effect that the all the circumstances, that he knew or beplaintiff's intestate said, before the bring-lieved that the testimony of the witnesses ing of the present action, that his back was broken and he knew that he was not going to get better. As appears from the tenor of the question, it was offered not for the purpose of proving the physical condition of the intestate but his state of mind, and by inference his mental suffering. This was admissible under R. L. c. 175, § 66, which has been liberally construed.
would be adverse, and for that reason did
(214 Mass. 484)
MCGILLVRAY v. EMPLOYERS' LIABIL-
 5. During the cross-examination of the conductor of the defendant, counsel for the plaintiff, after inquiring as to the number of witnesses whose names were taken by 1. him, and eliciting the fact that he could not tell precisely how many there were upon the accident report made by him, asked counsel for defendant: "May I see the report for the purpose of refreshing his recollection as to the number of witnesses? I just want him
(Supreme Judicial Court of Massachusetts. Essex. May 22, 1913.)
JUDGMENT (§ 632*)-RES JUDICATA-ParTIES CONCLUDED.
employé against the employer, procured through A judgment in favor of an injured infant the fraud of an insurer of the employer, inducing the employé's father to bring an action controlling the action and securing the entry in the employe's name as next friend, and then of a judgment for a small sum, and the entry