O'Brien v. Bernoi

297 Mass. 271 | Mass. | 1937

Lummus, J.

The plaintiff obtained a verdict upon a count for negligence causing the conscious suffering of his intestate, John Zucchi, and also upon a count for negligence causing his death.

There was evidence tending to prove the following facts. The defendant sent his son, a boy of seventeen, to buy some pigs, and wished Zucchi to accompany the son because Zucchi “knew pigs” and could “pick out pigs for the boy.” Nichols v. Rougeau, 284 Mass. 371, 375. Alderman v. Noble, 296 Mass. 30, 31. The son drove the defendant’s truck, and had two persons with him on the seat. Zucchi, who weighed at least two hundred thirty pounds, sat on the floor of the truck just behind the cab, facing the rear, with arms outstretched, grasping the side boards .with his hands. On the way back the son took a right angled corner at high speed. The corner was not banked, but was lower on the outside of the curve than on the inside. Zucchi lost his hold and was thrown out over a side board fourteen inches high, receiving fatal injuries. These facts made a case for the jury, if the evidence to prove them was properly admitted.

Some of the evidence that Zucchi was invited to ride for the benefit of the defendant was contained in a conversation between the plaintiff and the defendant, who spoke little English, in which the defendant’s son acted as interpreter. Although the plaintiff did not understand what the defendant said in Italian, the testimony of the plaintiff to the interpretation made by the son in the presence of the defendant was properly admitted. Camerlin v. Palmer Co. 10 Allen, 539, 541. Commonwealth v. Vose, 157 Mass. 393. Wigmore, Evidence (2d ed.) § 668. See also Commonwealth v. Storti, 177 Mass. 339.

The high speed of the truck in taking the corner was not expressed in miles an hour, nor in any other definite form. Different witnesses, testifying under G. L. (Ter. Ed.) c. 233, § 65, to statements made by Zucchi, used various expressions, such as “took the curve fast,” “come home rather in a hurry,” “took a corner going at a great speed,” and “making the curve with big velocity.” If nothing more had appeared, such “mere expletive or declamatory words or phrases as descriptive of speed,” impliedly comparing the actual speed with some speed deemed reasonable, normal or usual by the witness but not made known to the judge and jury, doubtless would not have been enough to warrant a finding of undue and negligent speed. Foley v. Boston & Maine Railroad, 193 Mass. 332, 335. Hunt v. Boston Elevated Railway, 201 Mass. 182. Anderson v. Boston Elevated Railway, 220 Mass. 28. Whalen v. Mutrie, 247 Mass. 316, 318. Marcienowski v. Sanders, 252 Mass. 65, 67. Seidenberg v. Eastern Massachusetts Street Railway, 266 Mass. 540, 542. Desautels v. Massachusetts Northeastern Street Railway, 276 Mass. 381, 384. Phinney v. Eastern Massachusetts Street Railway, 285 Mass. 207. But in the present case such expressions were accompanied by evidence, in part contained in the statements made by Zucchi, of physical facts tending to show excessive speed measured by the legal standard of the conduct of a reasonable man under the circumstances. Macy v. New Bedford, Middleboro & Brockton Street Railway, 182 Mass. 291. Partelow v. Newton & Boston Street Railway, 196 Mass. 24. McRae v. Boston Elevated Railway, 276 Mass. 82, 84. Johnson v. Berkshire Street Railway, 292 Mass. 311. The angle and the grade called for low speed and great care. In fact the speed was such that the centrifugal force broke the hold with both hands which Zucchi had, and threw him out over a side board fourteen inches high, notwithstanding his struggle which left the mark of his clutch upon the wooden frame of the cab. In connection with these facts, the expressions used were competent. Together they afforded evidence of negligent speed.

The statements made by Zucchi were made before the commencement of the action, for the action was not begun until after his death. Obviously they were made upon his personal knowledge. There was nothing to indicate that they were made in bad faith, and the circumstances tended to show that they were made in good faith. It was not necessary for the judge, before admitting the statements, to express in words his finding that the conditions of admissibility contained in G. L. (Ter. Ed.) c. 233, § 65, had been satisfied. The admission of the statements imported such a finding. Murphy v. Hanright, 238 Mass. 200, 206. Tenney v. Foss, 268 Mass. 69, 71. Rothwell v. First National Bank of Boston, 286 Mass. 417, 420.

There was no evidence requiring a finding that Zucchi assumed the risk of negligent driving by the son. Hietala v. Boston & Albany Railroad, 295 Mass. 186, 192. Engel v. Boston Ice Co. 295 Mass. 428, 432, 435. On the contrary, Zucchi's position in the truck required care on the part of the son commensurate with the danger.

The plaintiff testified that he asked the son whether “there was any insurance.” No answer appeared. The judge at once ordered the evidence of the inquiry struck out, and instructed the jury to disregard it. It is to be presumed that the jury obeyed the instruction. There was no error in refusing to declare a mistrial. Dempsey v. Goldstein Brothers Amusement Co. 231 Mass. 461, 464, 465. Lounsbury v. McCormick, 237 Mass. 328, 338, 339.

The motion for a new trial on the ground of excessive damages for death was addressed to the discretion of the trial court. There was no error of law in denying it.

Exceptions overruled.