276 Mass. 76 | Mass. | 1931
These cases arose from a collision between automobiles in which persons riding in both cars were injured, and a third automobile was damaged by broken glass from the colliding cars. Evidence was introduced without objection and was argued by opposing counsel from which it could have been found that the course of one of the automobiles before the impact was so- erratic that it justified a belief that the driver was intoxicated. There was evidence also that, when the driver fell from his
The trial judge charged: “There isn’t any evidence in this case that . . . [this driver] was intoxicated. There isn’t any evidence in this case that he had been consuming liquor.” Counsel for William F. and Annie M. Whiting called the attention of the judge to these statements and suggested modification. The judge stated to opposing counsel: “You can determine whether you will let the charge stand on the rum question as it now is or that . . . [counsel’s] instructions be given.” The interrogated counsel stated that he was satisfied to leave it, and no change was made. Exception was saved.
We think the excepting parties were entitled to have other and accurate instructions given. The charge as it stood was wrong. There was more here than inference upon inference, which would not support a finding of fact. If the jurors believed, the witnesses who described the course of the colliding car before the impact, and those who testified to the flasks and their contents, they had the facts of the presence of liquor, of behavior consistent with the effects of using it and inconsistent with the absence of its
The exception was well taken. Although no request for instruction had been made before the charge, the parties were entitled to adequate and accurate statement of the law for the guidance of the jury. The attention of the judge was called to an asserted inaccuracy. The parties affected by failure to correct it are entitled to the exception, which the judge properly saved to them. Mahoney v. Gooch, 246 Mass. 567, 571. We cannot properly say that the error was immaterial. Had the jurors felt that they could find intoxication, it might seriously have affected their decision.
Exceptions sustained.