289 Mass. 225 | Mass. | 1935
This is an action of tort to recover for personal injuries sustained by the plaintiff as a result of the alleged negligent operation of one of the defendant’s street cars which came in collision with the plaintiff’s automobile on July 3, 1929, in the town of Fairhaven, Massachusetts. The defendant answered general denial and contributory negligence.
The case was tried to a jury and there was a verdict for the defendant. It is before this court on the plaintiff’s exceptions to the portions of the judge’s charge that (a) imputed the negligence of the plaintiff’s husband to her,
The accident happened at the corner of Main Street and Linden Avenue in said town of Fairhaven. Main Street runs north and south, is about twenty-three feet wide with a set of car tracks in the middle of it. Linden Avenue runs east and west but does not cross Main Street and is twenty-seven feet in width. On July 3, 1929, the plaintiff owned a registered automobile, in which she was riding at the time of the accident and which her husband then was driving. Immediately preceding the accident they were riding westerly on Linden Avenue at a speed of about ten or fifteen miles an hour. At the intersection of the street and avenue the plaintiff and her husband saw a street car coming south from their fight, about fifty feet away. The husband made a turn into Main Street and went south. When the automobile was about twenty feet south of the south line of the avenue it was struck by the street car, the impact driving it across the street and onto the westerly sidewalk, then southerly along the sidewalk, across Winslow Court, and head on against a pole at the corner of Winslow Court and Main Street.
The husband of the plaintiff testified that in July, 1929, when the accident happened, he was a dry goods peddler; that on this particular afternoon he was going out for business and his wife asked him to take her to her sister’s house. The judge in his charge stated, without objection, that the automobile was owned by Mrs. Guy, and her husband was driving her on this particular day over to town, or to New Bedford, where she was to make a call or do some errands; and he instructed the jury that in the circumstances he had described “if Mr. Guy was negligent and his negligence
It is plain that the automobile was driven from the house of the plaintiff by her husband at her request, and equally plain that it was not used by her husband or intended by the plaintiff that it should be used in his business until after the plaintiff had been taken to her sister’s house. It is conceivable that the plaintiff, although present in her registered automobile, could have divested herself of all right to operate it or to control its operation by her husband. Corliss v. Keown, 207 Mass. 149, 150. Wheeler v. Darmochwat, 280 Mass. 553, 558. But the fact alone that she did not exercise control would not be sufficient to show abandonment of control. Foley v. Hurley, 288 Mass. 354. Here the offer of proof went only so far as to show, if the evidence supporting it were believed, that the plaintiff on other occasions, as well as on the instant occasion, had not manifested any control over her husband, either in the automobile or out of it, as to its operation. It is plain that the offer of proof would not warrant an affirmative finding that the husband was not the agent of the plaintiff while the automobile was being used in the sole interest of the plaintiff, Ballou v.
The defendant contends in its brief that the plaintiff was negligent because of her husband’s conduct in driving the automobile. The evidence of the husband’s negligence was ample to support a finding to that effect and the issue of his negligence is not discussed in the plaintiff’s brief. There was no error in the admission of the evidence bearing upon the issue whether the husband looked and what he saw when he looked, if he did, as the automobile approached Main Street. Robinson v. Old Colony Street Railway, 189 Mass. 594, 596.
An inspector called by the defendant testified on direct examination to certain statements made by the plaintiff’s husband concerning the accident. These statements were offered to contradict testimony previously given by the husband. On cross-examination, the inspector was asked whether the husband had told him that he (the husband)
For the reason that there was no offer of proof, the plaintiff’s exception to the exclusion of the question asked the inspector in cross-examination, “Don’t you know that he [the husband] told Chief Francis that the automobile [street car ?] was some distance up the road when he entered the intersection? ” must be overruled. Lee v. Tarplin, 183 Mass. 52, 54.
A witness called by the defendant, after testifying as to the accident, was asked on redirect examination, subject to the plaintiff’s exception, whether she had made a statement that the plaintiff’s automobile had cut the corner directly in front of the street car. She said that she thought she had. The defendant was then permitted to introduce a written statement (Exhibit 5), subject to the plaintiff’s exception. This exhibit was admitted in evidence to contradict previous testimony by the witness and was received in evidence, after consultation at the bench, with the following statement: “The Court: It may be marked Exhibit 5. These two statements are introduced not as evidence of the facts set forth therein, but only as statements alleged to have been made by the witness at some other time, and are to be considered only upon the question of the credibility of the witness. The statements contained therein, the statements referring to certain facts, are not evidence of the truth of these facts.”
The charge as to “sudden emergency” was adequate.
We find no reversible error in the conduct of the trial or in the judge’s charge.
Exceptions overruled.
“ 1. Where a witness, having made inconsistent statements as to her knowledge of the accident, finally adopts as the truth one of those statements, the witness is bound by the statement as last given as the truth. 2. When a witness, after making inconsistent statements, finally adopts as the truth one of those statements, then the statement of facts which she adopts as the truth becomes evidence of the facts.”