Coates v. BatesCoates v. Bates
- Reporters:
- Before:
- Crosby
This is an action to recover for personal injuries, received by the plaintiff while riding in an automobile, in Hampton, in the State of New Hаmpshire.
At the time of the accident, which occurred about 11:15 in the evening, the automobile was operated by one Chester F. Hоrne, a nephew of the plaintiff. There was evidence offered by the plaintiff tending to show that when Horne first saw the defendant’s automobile it was six hundred fifty feet away, coming toward him travelling in the center of the road; that it did not change its direction or speed, and аs the automobiles passed each other there was a collision, the automobile in which the plaintiff was riding “shot across the strеet into the embankment on its extreme left” side, and its occupants were thrown out, as a result of which the plaintiff’s leg was broken; that on the left running board of the defendant’s automobile a camping outfit was strapped which projected six or eight inches, and that it сollided with the automobile in which the plaintiff was riding; that the latter was travelling at a speed of about fifteen miles an hour and at the time of the accident was on the extreme right side of the road.
The defendant offered evidence tending to show that his automobilе was being operated at a speed of about fifteen to eighteen miles an hour, and was travelling on the right side of the road аs he proceeded; that there was ample room for the automobiles to pass if the automobile in which the *447plaintiff was riding hаd not been driven over the center line of the road; that it “shot to its left, scratched by the defendant’s car and then shot into the banking at the defendant’s right, but on the extreme left as the plaintiff was going, the Ford car going in the rear of the defendant’s car”; and that there was no camping equipment attached to the left running board of the defendant’s automobile.
All witnesses, both for the plaintiff and defendant, who testified on the subject stated that the point of impact was on the defendant’s automobile at a place on the left front mud guard four feet from the front, where there was a slight dent, and on the automobile in which the plaintiff was riding on the front wheel hub on the left sidе. The defendant testified that at the place of the accident the road was about eighteen feet wide. The jury returned a verdict for the plaintiff.
The case is before this court on an exception to the admission of certain evidence and to the refusal of the presiding judge to give the defendant’s fourth, fifth, sixth, seventh, eighth, ninth and tenth requests for rulings. We shall consider the exceptions in the order in which they are argued on the defendant’s brief.
1. A physician, who had performed an operation on the plaintiff’s leg, after describing the operation was asked by the plaintiff’s counsel, “Now, Doctor, is that a serious operation?” His answer was, “Yes.” This question was admitted subject to the defendant’s exception. The qualification of the witness to answer is not in issue. The evidence was propеrly admitted to show the extent of the plaintiff’s injuries. Monize v. Begaso, 190 Mass. 87, 89. It did not appear that the defendant’s counsel was precluded from interrogating thе witness for the purpose of elucidating and explaining the reasons upon which the opinion of the witness was based. See Linton v. Hurley, 14 Gray, 191. The case of Commonwealth v. Burton, 183 Mass. 461, 473, is not applicable to the facts in the case at bar.
2. The fоurth and fifth requests were in substance that the defendant had a right to carry luggage on his automobile, and projecting therefrom as he dеsired, so long as it did not unreasonably interfere with the use of the highway by other *448travellers, and that he had a right to assume that other travellers would exercise reasonable care to avoid coming in contact with the automobile or any luggage projecting therefrom. The judge, in substance, gave this instruction. He told the jury that “the mere fact that the running board of an automobile carries baggage is not negligence of itself, even if it projects beyond the running board; while not in itself negligence yet you might find or you might not find that because оf that fact it entailed somewhat greater care upon the person operating the automobile; but the question whether thаt existed or not is for you.” The judge had previously instructed the jury that it was the duty of all travellers upon the highway to exercise reasonаble care under all the circumstances.
3. The sixth request is based upon the assumption that the plaintiff’s automobile collided with the mud guard of the defendant’s automobile before the former had reached the point where the luggage was placed on the running board, and that such collision caused the overturning of the automobile. Full and accurate instructions were given upon this subject; the judge was not required to give specific directions respecting possible findings from particular parts of the evidence upon a single issue. As was said by Knowlton, J., in Hicks v. New York, New Haven & Hartford Railroad, 164 Mass. 424 at page 428, “It is largely a matter of discretion for the presiding judge as to how far he will discuss different phases оf the testimony upon a particular subject and give specific instructions, each founded upon only a part of the testimony bearing upon the subject.” Brown v. Harrington, 208 Mass. 600, 602. Bourne v. Whitman, 209 Mass. 155, 164.
4. The seventh, eighth, ninth and tenth requests related generally to the rights and duties of the parties respectively in the usе of the highway at the time of the collision. The jury were told that a traveller has a right to pass and repass over the highway, and ovеr all parts of it, subject to the duty so to exercise that right as not to injure other travellers in the exercise of a similar right. These instructiоns were in accordance with well settled principles. Kerr v. Boston *449Elevated Railway, 188 Mass. 434, 436. Johnson v. Shaw, 204 Mass. 165,168. Rice v. Lowell Buick Co. 229 Mass. 53, 56, 57. Each party contended that the other violated the law of the road (
The exddence upon the issues of due care and negligence was conflicting. The questions involved were properly submitted to the jury upon instructions which, so far as appears, were without error. As. we perceive no error of law in the conduct of the trial, the entry must be
Exceptions overruled.