Lummus, J.
On November 13, 1937, the plaintiff, a pedestrian on a public highway, was struck by the “right front” of an automobile owned and operated by the de*164fendant. The plaintiff was travelling east, and the defendant west, both on the north side of the highway. The auditor, whose findings were not to be final, found that the defendant did not see the plaintiff until after the injury, and that the defendant’s son, who was riding with her, did not see the plaintiff until the moment of the collision. The auditor found that the defendant was operating her automobile at a speed of thirty or thirty-five miles an hour during a hard rain when the visibility was poor. He found her negligent. Although he found that the plaintiff was under the influence of liquor, he found that the plaintiff was able to take care of himself, that the defendant’s automobile swerved toward him, that he tried to escape by jumping to the left, and that he was not guilty of contributory negligence.
The case was tried to a jury. The plaintiff, though present, failed to testify. In his argument, counsel for the defendant commented on that failure. The judge instructed the jury to disregard the comment, ruling that the jury could not infer that the plaintiff would have injured his case if he had testified. To this instruction the defendant excepted.
It is true that at the outset of the trial the plaintiff introduced the auditor’s report and rested. Whatever would have been the state of the case had the evidence stopped there, after the defendant had introduced the evidence of her son that the plaintiff staggered into the path of the automobile, and the evidence of another witness that half an hour earlier the plaintiff had been intoxicated and staggering, the plaintiff introduced the testimony of a physician that shortly after the injury the plaintiff’s breath carried no odor of liquor. That testimony tended to show, contrary to the report of the auditor and the testimony already narrated, that the plaintiff was sober. Whether the plaintiff was intoxicated and staggered into the path of the automobile, or not, was highly material.
In this situation the defendant had a right he argue that if the plaintiff could have testified to his sobriety he would have done so, and that his failure to testify gave rise to an *165inference that he was not sober. The instruction by the judge to disregard such an argument was error. Kelley v. Boston, 201 Mass. 86" court="Mass." date_filed="1909-02-24" href="https://app.midpage.ai/document/kelley-v-city-of-boston-6430534?utm_source=webapp" opinion_id="6430534">201 Mass. 86, 89. Attorney General v. Pelletier, 240 Mass. 264" court="Mass." date_filed="1922-02-21" href="https://app.midpage.ai/document/attorney-general-v-pelletier-6435650?utm_source=webapp" opinion_id="6435650">240 Mass. 264, 316. Wigmore, Evidence (3d ed.) § 289. Compare Bresnick v. Heath, 292 Mass. 293" court="Mass." date_filed="1935-10-31" href="https://app.midpage.ai/document/bresnick-v-heath-6441830?utm_source=webapp" opinion_id="6441830">292 Mass. 293, 297. The jury may have based their verdict for the plaintiff upon a finding that he was sober, made without consideration of inferences that might properly have been drawn from his failure to testify.
Exceptions sustained.