In the trial of an action brought by an administrator to enforce liability because of death, except tians were taken to the exclusion of evidence and to the refusal of an instruction.
Elizabeth Mahoney, deceased, hereinafter referred to as the plaintiff, on December 8, 1919, shortly before 5 p.m. was injured by an automobile owned by the defendant and then operated in his service. The accident happened in Taunton, on Broadway near the corner of Pauli Street, and
The plaintiff called a witness by the name of Robinson, who was fourteen years old when the accident happеned, and who testified that he was then on Pauli Street near its intersection with Broadway, that his attention was called to thе defendant’s automobile by seeing its lights when it was about one hundred and sixty feet from the point of collision, and that he had it in view until he saw the plaintiff and the car come in contact. He further testified that he had driven automobiles for about fivе thousand miles. From other parts of the record, it could have been found that he referred to his personal exрerience in driving, although his age forbade the holding of an operator’s license. St. 1909, c. 534, § 8. In direct examination he wаs asked to state the speed of the automobile while he saw it. The question was excluded subject to exception. Thereafter an offer of proof was made in effect that the witness would testify that the rate of speed when he saw the automobile was twenty miles per hour. After this he testified that he observed its speed; he was then asked “ What speed was it [the defendant’s automobile] going ? ” This question was excluded subject to the plaintiff’s exception. The record cannot be fairly construed as limiting the proffered testimony to the expression by this youth of an expert opiniоn concerning speed. Actual experience may well add weight to such testimony, but it does not warrant its rejectiоn, at least where the evidence is not offered as that of an expert. There was error in the exclusion of thе evidence offered. Johnston v. Bay State Street Railway,
The exclusion of the testimony of Mrs. Thigpen about the rate of speed was within the discretion of the judge. On the
In redirect examination this witness was asked: “ When you said in your statement to Mr. Hathaway [the defendant’s counsel] that this automobile was going slowly, what did you mean? ” The exception to the exclusion of this question may be disposed of on the ground that the record does not show thаt the witness made such a statement. Clearly a party has a right in redirect examination of a witness to ask an explаnation of testimony given by him only in cross-examination or call his attention thereto as a basis for further evidence rеlating to the same subject, and may by proper inquiry afford an opportunity to explain, correct, or modify such рrevious statements. Brown v. Brown,
A witness called by the plaintiff as an expert, whose qualifications were not disputed, was asked for his opinion of the speed of the vehicle, assuming the collision happened in the circumstances stated in a hypothetical question. The record is meagre and it cannot be held that the facts assumed as a basis for the question conformed to the evidence before the jury. Much must be left to the discretion of the trial judge; error must clearly appear in order to overturn its exercise. Oliver v. North End Street Railway,
Other exceptions to the refusal to admit evidence are not argued and nеed not be considered.
At the conclusion of the charge, the plaintiff requested the judge “ to charge the jury further on the extent of the injuries but . . . [he] declined so to do . . . [and] allowed
Exceptions sustained.