217 Mass. 59 | Mass. | 1914
The accident in question occurred at about 9.15 a. m., May 27, 1910, on a public highway known as the New Cut Road, which leads southerly from Ellicott City, Maryland, to the home of the plaintiffs, a distance of about a mile and a quarter. This road runs through a ravine and haá a number of curves. Jessie B. Gillet, hereinafter called the plaintiff, was returning to her home in a top buggy drawn by her family horse, and was seated on the right and driving. She had reached a point on the road about a mile from Ellicott City, and had passed the southerly end of a cottage known as the Ben Williams house, when an automobile driven by the defendant’s chauffeur came into sight around the bend in the road next south of the Williams house. The evidence tended to show that the horse became frightened, and shied; that it dragged the buggy over a bush and against a stump near the side of the road, and that the buggy was thereby upset and Mrs. Gillet was thrown out and injured. There was no collision between the team and the automobile.
The action of the plaintiff was brought to recover damages for the injuries suffered by her, and alleged to have been caused by the negligence of the defendant’s chauffeur; and the action of her husband, Edward M. Gillet, is brought for the consequential damages sustained by him. The cases were tried together, and the jury returned verdicts for the defendant. Thereupon the presiding judge, addressing the jury, said: “I would like to ask if the jury found that the chauffeur was not negligent?” To which the foreman answered “Yes.” The only questions raised by the exceptions relate to the admission or exclusion of evidence by . the judge.
1. As to the photographs. These were admitted after the defendant had covered the portions showing a horse and an automobile, and for the sole purpose of illustrating the physical features of the location. The jury were expressly told to use them so far as they reproduced the exact conditions, and to disregard both plans and photographs entirely so far as they showed anything else. It would seem from the record that the plaintiff’s counsel withdrew his objection to them after the horse and automobile had been eliminated. However that may be, the admis
The depositions of the civil engineer Sutton and the photographer .Groeninger, so far as they described how the photographs were taken and explained certain objects that appeared in them, clearly were competent. Whether the photographs could be used as a graphic illustration of experiments made by these witnesses relating to the range of vision from various points in the road need not be considered, as the judge expressly excluded their use for that purpose. In the preliminary examination some evidence that referred to these experiments was read from the depositions. To much of it no objection was made, and plaintiff’s counsel consented that the photographs might be used de bene and shown to the jury in this connection. The judge expressly allowed this testimony to be read only for the purpose of enabling him properly to pass upon the photographs. Later he excluded the photographs as experiments, limited their use as above stated, and so instructed the jury in his charge. It now seems apparent that it would have been better to conduct this preliminary examination in the absence of the jury; but the plaintiff did not so request, nor did she ask that the jury be further instructed to, disregard what had been said about experiments, nor except to the charge as given. We cannot say that harmful error is shown. Everson v. Casualty Co. of America, 208 Mass. 214. Slotofski v. Boston Elevated Railway, 215 Mass. 318.
2. The testimony of McNeil as to a conversation he had with the plaintiff Edward M. Gillet was admitted solely as bearing on the latter’s own case. The question asked was a proper one. It is now argued that the alleged warning testified to in the answer occurred in a private conversation between husband and wife, although that objection was not raised at the trial. Assuming however that the answer was incompetent, and that the objection is now open to the plaintiff, it cannot avail her, in view of the special answer of the jury, that the chauffeur was not negligent. The evidence could bear only on the plaintiff’s due care.
3. The remaining exceptions also are rendered immaterial by the special answer of the jury. It may be added, however, that the statements of the chauffeur after the accident, even if material to the issue, could not bind his employer as an admission of lia
Exceptions overruled.
