Wilder v. General Motorcycle Sales Co., 232 Mass. 305

Wilder v. General Motorcycle Sales Co.

232 Mass. 305 | Mass. | 1919

Crosby, J.

The first action is to recover for personal injuries received by the plaintiff by being struck and knocked down by a motorcycle operated by an employee of the defendant acting within the scope of his employment. The second action is for consequential damages. The defendant admitted liability and the case was tried on the question of damages only. The plaintiff in the first action will hereafter be referred to as the plaintiff.

There was evidence to show that the plaintiff’s injuries consisted of a compound fracture of the lower third of the tibia of the left leg, a fracture of the right collar bone, an extensive abrasion over the right forehead, the breaking of one front upper tooth, the cracking of the left incisor, a fracture of the second bicuspid, a crack of the upper tooth next the one broken off, and nervous shock.

1. A witness called by the plaintiff was permitted to testify, subject to the exception of the defendant, that the speed of the motorcycle at the time it struck the plaintiff was approximately thirty miles an hour. This testimony was offered solely for the purpose of showing “the amount of force applied to her body,” and counsel so stated. While the only issue was that of damages and the defendant admitted that the plaintiff was injured by the *308collision, the extent of such injuries was not admitted but was in controversy, at least so far as the plaintiff sustained injuries to her teeth. The jury might reasonably have believed that the injuries to her teeth would have been likely to be much more severe if the motorcycle was running at a rate of speed of thirty miles an hour than if it was proceeding slowly. In the opinion of the majority of the court the severity of the impact was a material fact proper for the consideration of the jury. Godfrey v. Old Colony Street Railway, 223 Mass. 419.

2. The evidence that the plaintiff suffered a second fracture of the bone of her leg at the same point as the original fracture was properly admitted. There was evidence that about a month after the first break the leg became septic and discharged pus at the seat of the break which continued until the following December, when her condition rapidly improved and she was able to go to school in January, 1917, although her leg was still weak; that on March 5, 1917, as she was “ starting to come down stairs in her own home, and had stepped from one stair to another with her left foot . . . her left leg ‘crumpled’ or gave way under her and it was found that the leg had again been broken at or near the site of the first break.” There also was medical testimony to show that the second' break occurred at the exact place of the first fracture; and the jury found in answer to a special question that the second break was “the result of the accident without the intervention of any negligence on her part or any independent cause.” We are of opinion that this finding was not unwarranted. It could have been found that the second injury was received while the bone was weak and had not recovered its normal strength owing to the septic condition which developed after the original fracture; and from this the jury also could have found that the second fracture was a natural and proximate result of the first injury. The act of the plaintiff in attempting to walk down stairs was not negligent as matter of law. Whether the second injury was the result of a separate and independent cause was a question of fact. Upon this issue the instructions of the presiding judge were sufficiently favorable to the defendant. The' case is governed by the decision in Hartnett v. Tripp, 231 Mass. 382, recently decided by this court, and the cases therein cited.

3. A dentist called by the plaintiff testified on direct examination *309that “in thirty years she would have to have false teeth, owing to loss of structure.” The defendant contends that this testimony was incompetent and should have been excluded. We need not decide this question as the record shows that no exception was taken to its admission.

The entry must be

Exceptions overruled.