Braun v. Bell

247 Mass. 437 | Mass. | 1924

Carroll, J.

The plaintiff while standing on a public highway in Boston, near the inbound car rail, waiting for an electric car, was struck and injured by an automobile of the defendant. The accident happened about five o’clock on the morning of January 2, 1921. The plaintiff testified that she was on her way to her place of business; that when she left the curbstone, the electric car she was about to enter was nearly three car lengths away; that after crossing a portion of the highway she stood about two feet from the car rail “ opposite the stop; ” that when the electric car was about one length from her the defendant’s automobile came from the rear of the car, passing to the right, at the rate of twenty-five miles an hour, and struck her. The conductor of the electric car testified that the automobile was following the car on the inbound track; that it swerved to the right and passed him at the rate of twenty-five miles an hour; and that he heard no signal from the automobile.

The plaintiff’s due care was for the jury to decide on all the evidence. When she crossed the street she looked “ up and down Harvard Street.” There were lights on the street, one at each side of the stopping place; “ there were no vehicles on the street; ” and as she was waiting for the car the automobile suddenly turned from the rear of the electric car, and, moving at the rate of twenty-five miles an hour, struck her. She stated that “ the lights blinded me so I couldn’t do anything,” referring to the lights on the automobile. The driver of the automobile could have seen the plaintiff, and by the use of proper caution avoided her. His negligence was properly submitted to the jury. See McGourty v. DeMarco, 200 Mass. 57; Foster v. Curtis, 213 Mass. 79; Ames v. Madonna, 247 Mass. 270, 273. There was evidence of the defendant’s admissions tending to show that the operator of the automobile was his agent, and engaged in his business.

The plaintiff was married January 26, 1921. She was allowed to introduce evidence, subject to the exception of the defendant, that she had paid to doctors and to an osteopath the sum of $94. For medical services rendered to the plaintiff after marriage the husband was presumed to be liable, and for the expense the wrongdoer was liable to him, Driscoll v. Gaffey, 207 Mass. 102, 108, but the wife may bind her own estate to pay for medical services rendered her, and when properly pleaded she may recover for this expense in an action for personal injuries. See Baldwin v. Western Railroad, 4 Gray, 333; Charron v. Day, 228 Mass. 305; Sherry v. Littlefield, 232 Mass. 220. It does not appear that the plaintiff in her declaration alleged that she suffered any special damages because of these expenses. If this fact had been called to the attention of the judge it would have been error to admit the evidence; but the defendant, in order to rely on this exception to the evidence because inadmissible under the declaration, should have called the judge’s attention specifically to the state of the pleadings; otherwise he could not be heard afterwards in support of an exception on this ground. Noyes v. Caldwell, 216 Mass. 525, 527.

An employee of the defendant, a witness called by him on cross-examination, testified that after the accident he had taken an automobile from the defendant’s garage, “ osa result of which there was some trouble.” The witness was then asked, against the defendant’s exception, if he was arrested because of this. He answered “ No.” He admitted, however, that he had been summoned to court, and was acquitted of the charge; that the defendant was one of his witnesses, but was not “ instrumental in having lenient disposition of the matter made for . . . [him].” The witness could not be discredited by asking him if he was charged with the commission of a crime and acquitted. See Commonwealth v. Homer, 235 Mass. 526. The plaintiff contends that this evidence was admissible to show that the witness was biased in the defendant’s favor because of the assistance given him by the defendant at the time he was on trial for the offence. This contention is fundamentally unsound. The evidence was not admissible and was harmful to the defendant. This exception is sustained.

Francis J. Murray, an attorney for the plaintiff, testified that the defendant called at his office. In relating the conversation between them the witness was instructed to omit certain parts of the conversation. He testified that the defendant said he was the owner of the automobile, that Pollock, who was driving the car when the plaintiff was injured, was directed by Johnson, the manager of the defendant’s garage, to carry a passenger to a lunch room; that Johnson had authority to engage Pollock for this purpose. The defendant testified that in the conversation with Murray he admitted that the automobile involved in the accident belonged to him, and “ I told him that she [the plaintiff] had an attorney; that ... he had taken the testimony of the two men that were in the car, ... he told me that there was not any case against me, that he did have a case against these two men who were in the car.” The defendant denied that he had any talk with, Murray concerning Pollock or Johnson, and denied that he told Murray that Johnson had any authority to hire employees.

On cross-examination, the defendant was asked, against the defendant’s exception, if he told Murray he was insured. He answered that he did. The plaintiff was then allowed to ask the defendant if he called on the insurance company, talked with the agent of the insurance company, told him of the accident and made a report to him. He was further interrogated concerning his dealings with the insurance company and its supplying counsel for his defence. Murray was then recalled and testified, subject to the defendant’s exception, that the defendant said to him that the insurance company denied liability, but had offered to furnish counsel to defend the case “ at my expense; ” that the defendant asked the witness if he thought that was fair, and the witness replied in substance, that if you have “ paid $750 for insurance, and the insurance company now refuses to take care of you, that is a matter for you to protect yourself against.” The judge instructed the jury that the evidence relating to insurance was admissible solely on the question of the defendant’s credibility.

In our opinidh this evidence relating to the insurance carried by the defendant, his conduct and conversation with the insurance agent, as well as the testimony of Murray when recalled, and his statement, “ it is up to you to take care of your rights against the insurance company,” were inadmissible and highly prejudicial to the defendant. We fail to see in what way it affected the credibility of the defendant. He admitted he owned the automobile; and Murray testified on direct examination, without exception, that the defendant admitted that Johnson had authority to hire Pollock to drive the automobile and that he was doing this when the accident took place. This aspect of the case is governed by Feins v. Ralby, 245 Mass. 228. The evidence was inadmissible and the exceptions thereto must be sustained.

There was no error in refusing the defendant’s motion for a directed verdict, or in refusing the defendant’s requests.

Exceptions sustained.