278 Mass. 339 | Mass. | 1932
This action of tort to recover compensation for personal injuries alleged to have been caused by the negligent operation of an automobile by the defendant was
1. A finding that the defendant was negligent was warranted. The evidence was substantially as follows: The plaintiff was riding in a taxicab in downtown Boston. He was seated on the right side of the rear seat of the taxicab with another passenger at his left. The taxicab was stopped by a police officer at a street intersection to permit traffic to move on the cross street. It was at the extreme right of the street “ahead of one line of traffic and . . . there was other traffic going in the same direction.” Other automobiles were at the left of the taxicab and pedestrians were moving about nearby. The taxicab had been standing approximately a minute when it was struck in the rear by the automobile operated by the defendant. The plaintiff “was thrown against some part of the cab striking the left side of his head . . . [and] was then thrown forward striking his head again and put his hand against the partition in front of him to avoid being thrown to the floor.” The defendant did not see the taxicab. There was no evidence as to the part of the defendant’s automobile which struck the taxicab or the part of the rear of the taxicab which was struck.
Evidence of the happening of a collision between..the twomotor vehicles^- evenif a rear-end collision — without evidence of the circumstances under which it~liappened is not proof of negligence of the operator of either oí theim Such a collision is not within~lhé“_míA res ipsa loquitur. Washburn v. R. F. Owens Co. 252 Mass. 47, 54. Woolner v. Perry, 265 Mass. 74, 77. Slight evidence of the circumstances, however, may place the fault. ■ Where, as here, there is evidence that under the conditions of traffic disclosed a taxicab standing at the extreme right of
2. There was no reversible error in the admission of evidence. The plaintiff was the publisher of a magazine and did some other printing. He testified that “before the accident he worked steadily during the entire day,” but that since the accident “he has not been able to work more than four hours per day . . . and is compelled to rest a good portion of the time.” Over the defendant’s objection the plaintiff was permitted to testify to his average monthly income for the year prior to his injury and for the year following it. This testimony showed a reduction in such income. The plaintiff was cross-examined at length as to his business activities. It is not contended
Diminution of earning power due to physical injury is an element of the damages recoverable' for such injury. Donoghue v. Holyoke Street Railway, 246 Mass. 485, 493. Evidence of wages, salary, or other income derived from personal services, and not interwoven with business profits, earned before and after an injury was sustained, for the purpose of comparison is admissible in proof of diminished earning power. Business profits, however, though in part attributable to the personal services of the person injured are not admissible. They depend upon so many factors other than the value of the personal services involved that a reduction of such profits is too remote to be considered in measuring diminution of earning power. Such diminution must be proved in some other way. The governing principles were stated in Mahoney v. Boston Elevated Railway, 221 Mass. 116, 117-118, and the rulings above quoted, so far as expressed in general terms, are substantially in the language of the opinion in that case. See also Bagley v. Kimball, 268 Mass. 440, 441-442.
We interpret the judge’s rulings, with the specific reference to “this plaintiff’s personal services” and “this case,” as intended to apply to the evidence before him, and as meaning that the evidence of the plaintiff’s income from publish
Order dismissing report affirmed.