BEATRICE CROWLEY vs. RUDOLPH SWANSON.

TORT. Writ dated November 15, 1928.

In the Superior Court, the action was tried before J. J. Burns, J. Material evidence, and action by the judge at the hearing of a motion by the defendant that a verdict be ordered in his favor, are described in the opinion. The judge ordered a verdict for the defendant and reported the action for determination by this court. The case was submitted on briefs.

T. J. Driscoll, for the plaintiff.

J. E. Hannigan, W. H. Taylor, & G. E. Drum, for the defendant.

LUMMUS, J. At about half past nine on the evening of May 29, 1928, the plaintiff was a passenger in an automobile which was standing, headed north toward Lowell, on the easterly side of a road about twenty feet wide in Wilmington. On the westerly side, partly in an electric car

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track, one Gilson was driving an automobile in the opposite direction. The defendant also was on the road, operating an automobile, as will appear. In a collision of automobiles the plaintiff was hurt. She brought this action of tort for negligence. The trial judge, subject to the plaintiff's exception, directed a verdict for the defendant, and reported the case.

The evidence was unsatisfactory. The defendant testified that he was travelling north toward Lowell, that when he saw the Gilson automobile coming he stopped, and that then the Gilson automobile struck his automobile, kept on to strike another behind him, and finished its course in the car tracks, turned around so as to be headed north. The plaintiff and her fellow passengers testified that an automobile travelling southerly at a high rate of speed behind the Gilson automobile cut out of line, turned back into line, struck the Gilson automobile in the rear, and drove it across the road into the automobile in which the plaintiff was riding. Gilson testified, reluctantly and evasively, that his automobile was struck by another and driven into the automobile in which the plaintiff was riding; but he finally admitted that he had no personal knowledge of what automobile hit him.

The evidence justified a finding of negligence on the part of the operator of an automobile travelling south in the rear of the Gilson automobile. The real question is whether there was evidence to identify the defendant with that operator.

The plaintiff declared that the defendant "bumped Gilson's car into us and bumped Gilson across the car track." She testified, "Swanson's car, the second car, struck the car that struck our car." But later she admitted that she know nothing of the identity of the operator of the automobile that struck Gilson's automobile except what had been told her afterwards by her fellow passengers. Her fellow passengers, in their testimony, furnished no identification. Gilson testified at one time, "The Swanson car struck my car," but later definitely left his testimony as before stated, that he did not know what automobile hit

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his. His testimony thus became of no value. Sullivan v. Boston Elevated Railway, 224 Mass. 405. Martin v. Boston Elevated Railway, 262 Mass. 542.

The plaintiff's case upon the identity of the defendant with the operator of the automobile which, upon the evidence for the plaintiff, struck the Gilson automobile in the rear, thus rests wholly upon the plaintiff's own testimony given as a conclusion derived from hearsay. It is true that incompetent evidence, once admitted without exception, need not be struck out even upon later motion (Boyle v. Columbian Fire Proofing Co. 182 Mass. 93, 99; Burke v. Kellough, 235 Mass. 405, 408; Rich v. Rogers, 250 Mass. 587, 589; Commonwealth v. Valentino, 257 Mass. 419; see also Buckley v. Frankel, 262 Mass. 13, 15), exerts its logical and natural probative force, and, if allowed to remain in the case, will be considered upon the question whether there is evidence requiring the submission of the case to the jury. Orpin v. Morrison, 230 Mass. 529, 531, 532. Mellet v. Swan, 269 Mass. 173, 175. DuBois v. Powdrell, 271 Mass. 394. MacDonald's Case, 277 Mass. 418, 422. See also Johnstone v. Cochrane, 231 Mass. 472. But a party who succeeds in introducing incompetent evidence has no right to insist that it remain in the case. The trial judge may reconsider its admission, and strike it out of the case (Selkirk v. Cobb, 13 Gray 313; First National Bank v. Home Ins. Co. 33 Ore. 234; Liner v. State, 124 Ala. 1; see also Allen v. Boston Elevated Railway, 212 Mass. 191; Stricker v. Scott, ante 12,) provided there is no surprise or other hardship to the party introducing it, such as appeared in Ferris v. Ray Taxi Service Co. 259 Mass. 401, and Paine v. St. Paul Union Stockyards Co. 28 Fed. Rep. (2d) 463. This the judge did in effect, without exception, while the defendant's motion for a directed verdict was being discussed. The judge said, "The plaintiff has no knowledge which car it was," and when counsel for the plaintiff replied, "Except that she heard from the officers [sic]," the judge rejoined, "that is not evidence." It is plain that the verdict was directed upon the footing that the testimony in question was out of the case. No suggestion was made or is made that any further evidence

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upon the point existed, which the plaintiff could have presented had the exclusion come earlier in the case. Under the circumstances it was not essential for the judge to instruct the jury to disregard the testimony in question, for the case was withdrawn from the jury.

Judgment for the defendant.