291 Mass. 506 | Mass. | 1935
This is an action of tort to recover damages for the conscious suffering and death of the plaintiff’s testator, hereafter called the deceased, alleged to have been caused by the negligence of the defendant in the operation of his automobile on Beacon Street, near its intersection with Powell Street, in Brookline. The case comes before this court on the exceptions by the defendant (1) to the denial of his motion for a directed verdict in his favor, (2) to certain portions of the charge and (3) to the admission of testimony.
The case is somewhat unusual in that the defendant testified that he found the deceased lying in the roadway and that his motor vehicle was not connected in any way with the injuries of the deceased. No witness testified that he saw the deceased struck by a motor vehicle. There was ample testimony, which need not be narrated or summarized, to show that the injuries from which the deceased was suffering were consistent with his having been struck by a motor vehicle and that those injuries were an adequate cause for his death. Marlow v. Dike, 269 Mass. 38. There was evidence tending to show that on the evening of November 29, 1927, the defendant was driving west on Beacon Street toward his home, that he was seen by a messenger boy named Yaitanes putting the deceased into his automo
All this evidence was sufficient to support a finding that the defendant while negligently operating his motor vehicle struck and injured the deceased. Fraser v. Flanders, 248 Mass. 62, 66. O’Keefe v. United Motors Service, Inc. 253 Mass. 603. Clark v. C. E. Fay Co. 281 Mass. 240. Conrad v. Mazman, 287 Mass. 229. The speed of the motor
It is plain that it could not properly have been ruled as matter of law that the defendant sustained the burden of proving contributory negligence on the part of the deceased. The only evidence bearing on that point was testimony that the deceased crossed the street and that that was the last he remembered. O’Connor v. Hickey, 268 Mass. 454, 458. Mercier v. Union Street Railway, 230 Mass. 397, 404. Mulroy v. Marinakis, 271 Mass. 421. Legg v. Bloom, 282 Mass. 303, 305.
The evidence required the submission to the jury of the issues of the negligence of the defendant and of the contributory negligence of the deceased. The motion of the defendant for a directed verdict in his favor was denied rightly. Noyes v. Whiting, 289 Mass. 270.
The exception as to evidence arose in this way: After cross-examination of the plaintiff she was asked on redirect examination, “You have been asked about suspicious circumstances . . . things with regard to Dr. Shain, his conduct, which impressed you as suspicious. Will you tell us in your own words what there was?” Subject to the exception of the defendant she was allowed to testify as follows: “The fact that Dr. Shain was so very — appeared to be so very nervous, and such a ghastly pallor; that he was so nervous, according to what he said himself, that he didn’t know where this accident had happened, and he put it somewhere north of St. Mary’s Street, which is a mile, well, must be a mile south of 1180 Beacon Street, I should think. Then later the next day the fact that he was so sure although Dr. Stevens was there with him and wasn’t at all sure in his mind what had happened to Mr.
After the jury were fully instructed on the various aspects of the case counsel on behalf of the defendant stated: “I think I want to take an exception to that part of your Honor's charge where you said you could take into account the Doctor’s admissions as bearing on culpability; that general statement. Then where you said also, I think it was the pallor of the Doctor, some probative force of the conduct of the Doctor after the accident, and the same as to the statement of the defendant it happened in Boston, and whether his conduct indicated that there was consciousness of responsibility, whatever that language was. I don’t know just what part it was, — in the latter part of your charge, where you stated also about the probative force of the conduct of the Doctor after the accident. There was a general statement. I think with that, that is all I have, your Honor.” This was hardly a proper way to take exceptions to a charge. Connelly v. Fellsway Motor Mart, Inc. 270 Mass. 386, 391. Passing that, the exception may be thought to apply to these portions of the charge: “Now, the evidence that the defendant’s automobile struck the plaintiff’s testator comes from the testimony of Yaitanes, and also whatever probative force there may be in the conduct of the defendant after the accident and, of course,
It cannot be seriously contended that the conduct of a defendant is not admissible against him in civil or criminal proceedings as tending to show consciousness of liability. Banfield v. Whipple, 10 Allen, 27, 31. Labrie v.
Exceptions sustained.