281 Mass. 129 | Mass. | 1932
These are actions of tort arising out of a collision of an automobile and a truck owned by the defendant and operated by one Keith, its employee. The accident occurred about half past one in the morning of April 7, 1926, on Riverside Avenue, in Somerset, in this Commonwealth, not far from the entrance to the Bright-man Street bridge. Riverside Avenue runs north and south; the bridge runs east and west, beginning at Riverside Avenue on the Somerset side and going east to Fall River. The plaintiff Theresa Monaghan was the owner and driver of the automobile. The other plaintiffs, except Orpha F. DeVaux, were passengers in the automobile invited by the owner to attend an entertainment in Boston the evening before. They were returning to their homes in Fall River when the accident occurred. There was testimony offered by the plaintiffs to the effect that while they were travelling
There was evidence that Riverside Avenue at the place of the accident was fifty-four feet wide and the Brightman Street bridge was forty-four feet wide. The only witnesses who saw the accident were the persons in the automobile and the driver of the truck. The latter testified that the truck was twenty-three or twenty-four feet long and at the time of the accident carried two thousand ninety-six gallons of oil and weighed fourteen tons; that it was equipped with two headlights, one green light on the extreme left side, and a tail light, and that all the lamps were lighted and had been tested the night of the accident; that when he reached the Brightman Street bridge he was travelling on the right hand side of the road at a speed of about twelve miles an hour; that he saw the automobile when it was about three hundred yards away from the point of collision and at that time it seemed to be travelling on the right hand side of the road; that he did not see it again until it was about thirty feet away “going directly toward him,” and travelling faster than the truck, although he could not state its rate of speed; that it was directly in front of the truck and coming toward it travelling on its left side of the road; that when the truck was part way around the curve entering upon Riverside Avenue, the automobile was coming toward the truck. This witness further testified that while going over the bridge he was travelling about a foot from the curbing; that when he saw the automobile “he threw his wheels to the right, put his brake on and threw out his
Upon cross-examination of the operator of the truck, the plaintiffs introduced in evidence three records of the conviction of the witness for operating a motor vehicle at an unreasonable or excessive rate of speed; in each case a fine was imposed. These records were properly admitted. On redirect examination by the defendant’s counsel the witness was permitted to testify in substance, subject to the plaintiffs’ exception, that on the three occasions when he was convicted he was not driving an oil tank truck. The judge at the time of admission of the evidence stated that no evidence would be admitted to explain the various complaints on which he had pleaded guilty. Again in the charge the judge said: “Evidence was offered here in behalf of the plaintiff of certain records of conviction against Stanley Keith. I told you at the time that those were offered, that the only reason why I could admit that particular kind of evidence was for the purpose, if it does, of impeaching the credibility of Stanley Keith’s testimony. What does that mean in plain language? It means this. Do those records as such help you in passing upon the trustworthiness and the dependability of his testimony, or do they impeach it? Do they discredit it? Bear in mind, gentlemen, because these records are offered that is no evidence that on this particular night that the truck of the defendant company was operated in a careless manner by this Stanley Keith. You have seen him on the stand. You have had an opportunity to size him up. Take that evidence with anything else that has appeared in the case and see whether or not in your opinion that evidence does tend to discredit him; in other words, discredit his testimony in this case and that is for you to say.” Although the evidence was immaterial and inadmissible, Commonwealth v. Galligan, 155 Mass. 54, Lamoureux v. New York, New Haven & Hartford Railroad, 169 Mass. 338, we are of opinion that its admission was not harmful to the plaintiffs. If, as we must assume, the jury followed the instructions given, the evidence of the conviction of the witness for the crimes charged, as
A witness called by the defendant as an expert in the control and repair of automobiles testified that after the accident he examined tire marks of the truck in the highway; that they “did not turn the regular way, they turned very sharp . . . .” He was then asked in substance whether the mark had been made by a wheel rotating or in some other way. This question was admitted subject to the plaintiffs’ exception. The answer was “as though you had used a rubber, something on the surface, leaving lots of particles of the black rubber on the cement, as it rubbed along the cement.” This evidence was admissible as it tended to show the position of the truck and the effect upon it of the collision.
The chief of police of Swansea testified that after the collision he went to the place of the accident; he described the position of the truck and of the automobile as to marks on the highway, and said that the automobile was on its left hand side of the road.' On cross-examination he said that at a previous trial of the case he had testified where the automobile was, but he did not remember testifying how far it was from the tracks. It was then agreed that in the transcript of the evidence at the previous trial certain questions were asked and answered by the witness. On redirect examination, subject to the exception of the plaintiffs, the defendant’s counsel was permitted to read the testimony of the witness at the previous trial. In this there was no error.
The plaintiffs excepted to the refusal of the judge to grant their ninth, tenth, eleventh and twelfth requests' for rulings. They need not be considered in detail; it is plain that they were rightly refused, as all of them presented questions of fact for the jury to decide upon conflicting evidence. The fourteenth and fifteenth requests also presented questions of fact for the jury; besides facts were assumed in these requests which were not admitted. No question of law is presented by them.
The plaintiffs excepted to that part of the charge which
We find no error of law in the conduct of the trial.
Exceptions overruled.