Home HAROLD W. COPP & another vs. EVELYN R. FOSTER.

345 Mass. 777

March 28, 1963

Decree affirmed with costs to the defendant. This is an appeal by the plaintiffs from a final decree of the Superior Court in which it was adjudged that the defendant has the "right of way to pass and repass, on foot and by motor vehicles" over a portion of the plaintiffs' land. The decree established limitations to the defendant's use of the right of way and enjoined the plaintiffs from "interfering" with the defendant's use thereof. In their brief the plaintiffs concede that a right of way over their land was created by deeds granted in the year 1900. They contend, however, that the right of way should be "two or three feet" narrower than the twelve feet allowed in the decree and that a small, triangular area of their land was erroneously included in the right of way. There was sufficient evidence to justify the judge's findings as to the width of the right of way, to the length of time the disputed area was used, and that it had become part of the right of way by prescription, if not by grant. The original "right of way over the northwest corner" of the plaintiffs' land was "to pass and repass at all times with teams." There was no error in determining that the right of way should now be open to motor vehicles. Deacy v. Berberian, 344 Mass. 321 , 327-328.

Home FLORENCE MALKO & another vs. BEATRICE FERRANTE & another.

345 Mass. 777

March 28, 1963

Decree affirmed. No error is shown in the decree of the Probate Court for Suffolk County which allowed the last will of Edward Esa executed July 6, 1960. Testimony of a handwriting expert as well as the appearance of the will support the view that the testator used two different pens in executing the will and that some of the five sheets of paper on which it is written were of different lots. This evidence and the testimony of the expert of a tremor in the signatures in the margin of two pages, which were written, in her view, with a ball point pen, and also on checks which she used as standards, and that the other signatures on the will did not show this tremor, did not require rejection of the testimony of the three attorneys who were the attesting witnesses. They testified that all the testator's signatures were placed on the will at one time and in their presence. That the witnesses did not recall the use of two pens or recalled that only one was used did not discredit their other testimony. The evidence permitted the conclusion of due execution and we cannot say that the judge was plainly wrong. It was not error to exclude the question to the expert whether she had an opinion "with respect to the composition of this instrument." No subject for expert testimony is suggested by this obscure inquiry. It was not error to permit the proponents to put in evidence copies of two prior wills which the contestants' attorney asked to see, and inspected, and about which the attorney asked questions, in one case before, and in the other case after, inspection.

Home DAVID SHERMAN & another, executors, vs. METROPOLITAN TRANSIT AUTHORITY.

345 Mass. 777

March 28, 1963

Exceptions overruled. There was a verdict for the defendant (M. T. A.) in this action to recover for the death of the plaintiffs' testator who was struck by an M. T. A. bus. The judge did not err in excluding the plaintiffs' questions to the bus operator, called by the plaintiffs, about his alleged prior inconsistent statements to a motor vehicle

Page 778

registry inspector when an adequate foundation had not been established for such questions. Cf. Malloy v. Coldwater Seafood Corp. 338 Mass. 554 , 567. The plaintiffs did not offer in evidence a report to M. T. A. by the bus operator allegedly inconsistent with the latter's testimony. The exclusion of questions about the contents of the report, marked only for identification, was proper, where the report itself was available. A report to the registry inspector by the bus operator was not shown to have been made by or in the presence of any M. T. A. agent authorized to make admissions (see Barrett v. Wood Realty Inc. 334 Mass. 370 , 373-374) or to have been sufficiently free from ambiguity to be contradictory of the operator's testimony. There was no error in excluding questions to the inspector about the report. Exclusion of the plaintiffs' questions to one Flynn (called by them), who saw the accident, about alleged inconsistency between his testimony at the trial and prior testimony was not prejudicial. Both statements were before the jury and any inconsistency (which pictures of the bus indicate was negligible) could have been considered by them. Questions by counsel for M. T. A. to the bus operator about the range of vision from the operator's seat did not call for an opinion on the ultimate issue for the jury. See Shea v. Boston Elev. Ry. 217 Mass. 163 , 165. Cf. McNeil v. New York, N. H. & H. R.R. 282 Mass. 575 , 579; Birch v. Strout, 303 Mass. 28 , 32. The judge, in the absence of counsel who were not notified (see Haven v. Brimfield, ante, 529, 532-533), answered a question presented by the jury after they had retired to deliberate. These additional instructions were adequate when read in the context of the original charge.