221 Mass. 24 | Mass. | 1915
This is an action brought under R. L. c. 171, § 2, as amended by St. 1907, c. 375, and St. 1911, c. 31, to recover for the conscious suffering and death of the plaintiff’s testatrix, who was struck by an automobile operated by the defendant and received injuries which resulted in her death.
1. There was evidence upon the question whether the deceased consciously suffered as a result of her injuries, and that question properly was submitted to the jury.
2. The defendant contends that there was no evidence from which it could have been found that the plaintiff was entitled to recover for the death of his testatrix. There is no allegation in the declaration that the testatrix was survived by a child or children, or by any persons as next of kin. There is nothing in the record to show that this question was raised at the trial. The case comes before us pnly upon the exceptions of the plaintiff. We do not think under the circumstances that this question properly can be raised at this time by the defendant.
The case was submitted to the jury by the trial judge
3. The exceptions to the refusal of the judge to give the plaintiff’s requests numbered 17, 18, 19, 20, 21, 22 and 23 cannot be sustained. These requests relate to the failure of the defendant,
in his answer to question number 12 in the form of application for an operator’s license, to disclose to the Massa
5. The question put by the defendant to the witness Scannell
6. The plaintiff in his brief has argued that the question put to the defendant, "And how long had you been operating an
7. The plaintiff in his brief has argued that the defendant’s testimony as to his instructions and experience, and also as to his study of the construction and operation of automobiles, was admitted improperly. This testimony is found on pages 15 and 16 of the record, and by reason of the amendment above referred to was not excepted to. The only testimony which was admitted subject to exception appearing on pages 15 and 16 was the testimony of the defendant as to his understanding of question number 12 in the application for a license above referred to.
8. The plaintiff excepted to the admission of the testimony of several witnesses as to the manner in which the defendant operated his automobile during the two years after the accident which resulted in the death of the testatrix. The fifth count of the declaration contained an allegation “that said injuries were caused by reason of the defendant’s careless and negligent operation of said automobile, as well as by his physical unfitness to operate an automobile.” The evidence showed that at the time of the accident the defendant wore an artificial leg, his right leg having been amputated two or three inches above the knee, and that at that time his left leg was withered. The plaintiff contends that there was no evidence to show that the physical disability of the defendant was the same two years afterwards as at the time of the accident, and that consequently this evidence as to the manner in which he operated his automobile, aside from other reasons, was incompetent. The jury fairly could have assumed that the condition of the right leg had not changed during this period. Besides the defendant testified at the trial, and was subjected to certain tests in the presence of the jury as to the use which he had of both legs, from all of which the jury could
One Lydon, a police officer, called by the defendant, was asked upon direct examination what he had observed as to whether or not the defendant’s “manner and method of operating an automobile was careful and competent.” This question was admitted by the judge subject to the plaintiff’s exception. The witness answered, “Always a very careful man in the Park system.” The judge, upon objection, ordered the answer stricken out upon the ground that it amounted to a characterization of the defendant’s manner of operating an automobile. Notwithstanding this ruling of the presiding judge, this witness afterwards, on direct examination, was permitted to testify, subject to the plaintiff’s exception: “When I ever met you in the Park coming along very careful, . . . you . . . always stopped just this side of Castle Island Bridge, and careful as I thought.” The defendant called one Bouchet, also a police officer, who was asked by the defendant as to what he (the witness) had observed as to his (the defendant’s) operation of an automobile. The witness answered: “My observations were that you were always a slow operator.” One O’Connor, a police officer, called by the defendant, after testifying as to what he had observed as to the defendant’s manner of operating his car, said: “And I never had any occasion to caution you at all.” One Meagher, a witness also called by the defendant, testified on his direct examination in reply to questions as to what he had observed of the defendant’s methods in running an automobile, “Well, you always impressed me as
Although the presiding judge ruled that it was incompetent to show that the defendant operated his automobile carefully, when the witness Lydon so testified, still it appears that after-wards the defendant was permitted to offer similar testimony from three other witnesses, all subject to the exception of the plaintiff. The admission of this incompetent evidence was not referred to in the charge, the jury were not instructed to disregard it, and we are unable to say that it did not have a tendency to prejudice the substantial rights of the plaintiff. St. 1913, c. 716. Allen v. Boston Elevated Railway, 212 Mass. 191. We are of opinion that the exceptions to the admission of the evidence above referred to must be sustained. As there seems to have been no other error in the conduct of the trial, all other exceptions are overruled. It follows that the entry must be
Exceptions sustained.
This witness was called by the plaintiff and had testified in regard to the difficulty that a man with an artificial leg extending above the knee would have in operating an automobile. On cross-examination the defendant asked the witness, after a statement of the defendant’s extensive experience in operating an automobile, “assuming I have driven to that extent, would you then say that I was able properly to operate a runabout of the year 1912, assuming its equipment to be in good order?” The plaintiff excepted to the question, and the judge admitted it.
The witness answered: “Assuming all the conditions to be as you have given them, I should say that . . . the common sense principle, that actions speak louder than words, was the answer.” The defendant then asked:
■ “And that therefore I was able properly to run that runabout car?” and the witness answered; “So it would seem from past performance, yes.”