211 Mass. 483 | Mass. | 1912
The evidence warranted the jury in finding the following to be the facts in this case: The plaintiff going east on a motor cycle came down Lebanon Street in the city of Springfield and turned into Hancock Street intending to go north on that street. Hancock Street is forty to fifty feet wide, with an electric car track in the middle of it. As the plaintiff “came along up Lebanon Street” he listened and looked to see if a car was coming, and shut off the power “right at the corner,” and was then going six miles an hour. There is a house on the southwest corner of Lebanon and Hancock Streets which obstructed the plaintiff’s view of a car coming from the south (as the car here in question was coming) up Hancock Street. The gong of the car was not sounded. As soon as the plaintiff got into a position where he could see down Hancock Street to the south, he saw the car here in question coming at the rate of twenty miles an hour; it was then about forty feet away. Realizing that he could not cross to the right hand side of Hancock Street ahead of the car, the plaintiff turned his cycle and “pedalled” to get between the car and the left side line of Hancock Street. He testified that he “went within probably a foot or such a matter of the car track before I turned my machine.” But before he succeeded in getting clear and when he was about fifteen feet north of the cross walk on Hancock Street opposite the north line of Lebanon Street, the car struck him “right in the shoulder, the shoulder and side,” “caught the machine and threw me [him] on the ground.” The part of the car which struck him was just back of the vestibule, where the side of the car “swells” out. The motorman of the car testified that he never saw the plaintiff until he backed his car after the accident to the place where the plaintiff then was. Under these circumstances there is no question of the defendant’s negligence.
1. The circumstances of the case so far as the plaintiff’s con-
2. After a long cross-examination as to details, the plaintiff was recalled by the defendant. At the end of this further cross-examination his counsel was allowed to put this question to him: “Was there anything, Mr. Robinson, you could have done that you didn’t do to have avoided this collision?” To this the defendant took an exception.
The defendant’s counsel has assumed in his argument that this question called for the plaintiff’s opinion upon the issue whether he did all that could have been done to avoid the collision. If that had been the true meaning of the question it would have been incompetent. Of that there is no doubt. Short Mountain Coal Co. v. Hardy, 114 Mass. 197. Providence Tool Co. v. United States Manuf. Co. 120 Mass. 35. Spillane v. Fitchburg, 177 Mass. 87.
The question asked and allowed did not in terms ask for the plaintiff’s opinion on the one hand nor on the other hand did it in terms ask if there were further facts bearing on this matter. The question was so framed that its true character is not perfectly clear. But we are of opinion that it must be taken to have called for further facts and not for the plaintiff’s opinion. Its framework is not unlike that of the question allowed where the mental condition of a person is in issue. In such a case it is settled that a witness who saw the person can be asked what, if anything, he saw which indicated that the person was of unsound mind. This question is allowed because, properly construed, it seeks to get facts which bear upon the unsoundness of the mind of the person in question, and does not seek to get the witness’s opinion upon the significance of what he saw. See Clark v. Clark, 168 Mass. 523; Hogan v. Roche, 179 Mass. 510; McCoy v. Jordan, 184 Mass. 575; Gorham v. Moor, 197 Mass. 522.
Exceptions overruled.