270 Mass. 88 | Mass. | 1930
These are two actions of tort tried together to a jury, one by Mary Correira to recover damages for personal injuries sustained by her while a passenger for hire in a motor omnibus, owned and operated by the defendant as a common carrier of passengers for hire between Boston and Fall River; the other by Manuel Correira for personal injuries sustained by him while a passenger for hire in the same motor omnibus, and also for expenses and consequential damages which resulted to him in consequence of the personal injuries sustained by his wife, Mary Correira. No requests for instructions were made and refused and no exceptions were taken to any part of the charge. No question is raised by the bill of exceptions as respects the due care of the plaintiffs and the negligence of the defendant. The injuries of which the plaintiffs complain arose out of a collision between the motor omnibus and a heavy motor truck. In each case the jury returned a verdict for the plaintiff, and the cases come before us on exceptions taken by the defendant to the admission of evidence in the course of the trial.
Shortly stated, the facts disclosed by the bill of exceptions are that the plaintiffs became passengers for hire on the defendant’s motor omnibus for Fall River at Boston on the afternoon of May 25, 1927. The weather was showery. Between Boston and the place of the accident it was good wheeling and the way was passed without incident. The place of the accident was outside the thickly settled part of, and very close to, the northerly side of “Tripp’s Bridge” on Somerset Avenue, near the Taunton-Dighton line. The roadway was “pretty slippery.” At the bridge the roadway wrought for travel was approximately twenty feet wide, without sidewalks. The bridge, made of concrete, was seventy-five feet long and twenty-one feet wide. The
In describing the collision, one of the plaintiffs was permitted to testify, subject to the exception of the defendant, that “The bus was skidding.” The witness then testified without objection that what he meant by “skidding” was “that just as he went around that bend there, that as the bus was going around that bend he couldn’t go straight because the bend would stop him, and in order to go around that curve he had to cut sharp and when he did the rear end of the bus skidded over.” There was no reversible error in the reception of this evidence; or in the refusal to strike out the answer, “It was skidding,” as not responsive to the question, “Did you notice the bus doing anything?” The verb “to skid,” when used in connection with the operation of a motor vehicle on the roadway, is well understood to mean that the car when driven slips sidewise on the road, and the rear wheel fails to grip the roadway. Even though the statement was an expression of opinion, it was nevertheless an inference of fact which was the result of observation that could not be fully reproduced to or visualized by the jury. Commonwealth v. Sturtivant, 117 Mass. 122, 133. Morrissey v. Connecticut Valley Street Railway, 233 Mass. 554, 557. McGrath v. Fash, 244 Mass. 327.
It was in evidence that one Mary E. Dennis was seated on the same seat and to the right of the driver of the omnibus
The evidence was inadmissible as an admission to bind the defendant. Rankin v. Brockton Public Market, Inc. 257 Mass. 6, 10, 11. In view of the high degree of care owed the plaintiffs by the defendant, it was admissible as a part of the res gestae because it was contemporaneous with the collision, was spontaneous to a degree which reasonably negatived premeditation or possible fabrication, and tended to qualify, characterize and explain the causal relation, if any, between the accident and the conduct of the operator of the omnibus immediately before the accident, and thereby to throw light upon the issue of whether or not the driver exercised the highest degree of care for the safety of the plaintiffs which was consistent with the defendant’s undertaking. Dodge v. Boston & Bangor Steamship Co. 148 Mass. 207, 218. Feital v. Middlesex Railroad, 109 Mass. 398. “When the act of a party may be given in evidence, his declarations, made at the time, and calculated to elucidate and explain the character and quality of the act, and so connected with it as to constitute one transaction, and so as to derive credit from the act itself, are admissible in evidence.” Lund v. Tyngsborough, 9 Cush. 36, 42. See Conklin v. Consolidated Railway, 196 Mass. 302; Robinson v. Doe, 224 Mass. 319, 323; New Jersey Steamboat Co. v. Brockett, 121 U. S. 637.
Exceptions overruled.