Belisle v. Lisk, 2062.

• Decision Date: 18 December 1926
• Docket Number: No. 2062.,2062.
• Parties: BELISLE v. LISK.
• Court: U.S. Court of Appeals — First Circuit

16 F.2d 261 (1926)

BELISLE v. LISK.

No. 2062.

Circuit Court of Appeals, First Circuit.

December 18, 1926.

George P. Beckford, of Boston, Mass. (James C. McDonald, of Worcester, Mass., on the brief), for plaintiff in error.

Samuel Perman, of Worcester, Mass. (Clifford H. Searl, of Syracuse, N. Y., and Frank P. Ryan and Henry P. Scannell, both of Worcester, Mass., on the brief), for defendant in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

In this automobile accident case the plaintiff had a verdict for $9,800. The defendant's motion for a new trial, urged on the single ground of the discovery of new evidence bearing on damages, was overruled.

In brief outline, the accident was caused by the defendant's Buick, weighing 3,400 pounds, carrying five passengers, driven by himself, running into the rear of the plaintiff's Ford, driven by one Miller, on the state righway, near Utica, N. Y., on Sunday afternoon, September 7, 1924. The day was clear; the traffic was "in bunches and very close." There was a line of 15 to 20 cars ahead of the plaintiff's car when it stopped and was run into by the defendant.

The defendant pleaded the plaintiff's contributory negligence; he sought to excuse his running into the Ford by claiming that Miller stopped suddenly without giving a warning signal. But the main question tried was the amount of damages, not defendant's liability.

The case comes here on assignments of error, all based on exceptions taken to the admission of certain evidence given by Miller, argued to be prejudicial on the issue of the plaintiff's contributory negligence. It is conceded that Miller's negligence would be the plaintiff's negligence. On this issue, the court applied the state, and not the federal, rule, instructing the jury that the plaintiff must show affirmatively that she did not contribute, by Miller's carelessness, to the accident.

The evidence assailed as inadmissible is within narrow compass. Miller, called by the plaintiff, testified that he was a machinist, employed as a gear maker in a branch of the General Motors Company. Subject to defendant's exceptions, he was then permitted to state that before the day of the accident he had been driving cars for about 12 years, and had driven Packards, Jewetts, Fords, Mitchells, foreign cars of three or four different makes, English, German, and French, Studebakers — "oh, I can't remember them all." Without objection, he also testified that he had owned three different cars and had been a licensed chauffeur for years. It is upon alleged error in admitting this evidence of Miller's experience in driving various cars for 12 years that the defendant relies for his contention of a mistrial. In support of this highly technical claim, the defendant cites as the leading case, Lang v. Boston Elevated Ry. Co., 211 Mass. 492, 98 N. E. 580. This was the familiar suit to recover for injuries caused by the alleged negligence of a motorman. The doctrine now relied upon is disclosed by the following excerpt from the opinion:

"One of the questions was whether in the circumstances of the collision between the plaintiff and the defendant's car the motorman was negligent. That was to be determined by his acts either of commission or omission. Upon the questions what those acts were and whether they or any of them were negligent, the length of time he had been in the defendant's employ as a motorman and the nature and amount of his instructions were entirely immaterial, and the evidence upon those matters was wrongly admitted. The defendant seasonably excepted to its admission. It is suggested by the plaintiff that putting an inexperienced or incompetent person in the position of a motorman might be of itself evidence of the defendant's negligence. But unless there was evidence of negligence in the conduct of the motorman the negligence of the defendant in employing him did not contribute to the accident and therefore was immaterial."

It will be observed that this ruling is grounded, not merely on the admission of evidence as to the motorman's experience, but also as to "the nature and amount of his instructions." It is thus plainly distinguishable from the case at bar. Similar or analogous rulings are also found in Hunt v. Boston & Maine R. R. Co., 250 Mass. 434, 146 N. E. 30; Reardon v. Boston Elevated Ry., 247 Mass. 124, 141 N. E. 857; Sport, Petitioner, 221 Mass. 453, 109 N. E. 399; Polmatier v. Newbury, 231 Mass. 307, 120 N. E. 850; See, also, McDonald v. Savoy, 110 Mass. 49. Compare O'Hare v. Gloag, 221 Mass. 24 at page 29, 108 N. E. 566; Luiz v. Falvey, 228 Mass. 253, 117 N. E. 308; McGlinchy v. Henderson, 240 Mass. 432, 134 N. E. 264.

But careful examination of the Massachusetts cases leaves us unconvinced that the Supreme Judicial Court of Massachusetts would regard as reversible error the admission of such evidence as the court below admitted limited (as it was) merely to Miller's experience in driving cars. In proper perspective, it was hardly, if at all, more irrelevant than his testimony, taken without objection, that he was a machinist, and had owned three cars, and had for years been a licensed chauffeur. The extent to which such merely descriptive irrelevancies should be admitted is ordinarily a matter of discretion for the presiding judge. Robinson v. Cutter, 163 Mass. 377, 380, 40 N. E. 112; McGlinchy v. Henderson, 240 Mass. 433, 434, 134 N. E. 264; Bemis v. Temple, 162 Mass. 342, 346, 38 N. E. 970, 26 L. R. A. 254; 40 Cyc. p. 2418.

In this case the evidence was admissible to show Miller's competency to testify (as he did) to the value of the Ford before and after the accident, and perhaps on other grounds.

But the defendant also claims that in the charge to the jury the court treated the evidence of Miller's experience as competent on the question of the plaintiff's contributory negligence. It is true that in the charge the court alluded to Miller's being a man of great experience in handling autos. But, taking the charge as a whole, it was made entirely clear to the jury that the question was whether, on this occasion, Miller had conducted himself with proper care. Moreover, although the bill of exceptions recites that the defendant was aggrieved "by the comments of the court in his charge concerning" Miller's experience, the bill does not disclose that any instructions were asked on that point, or that any exceptions were saved to the instructions given. In the plaintiff's brief is the flat statement that there were no exceptions to the charge, and in the defendant's brief is no claim that any exceptions were saved. So far as appears, the court was left to assume that the defendant was entirely satisfied with the charge. It follows that it is at best doubtful whether any exception on that ground is before us, and also, if before us, whether there is the slightest merit in the contention.

But, assuming possible errors under the Massachusetts rulings as to the admission of the evidence and its significance under the instructions given, it is clear that, under the rule which must prevail in this court, the judgment must be affirmed, although ordinarily in such cases the state rulings as to evidence are applicable. American Railway Express v. Rowe (C. C. A.) 14 F.(2d) 269, and cases cited. For we are bound by Judicial Code, § 269 (as amended by Act Feb. 26, 1919 Comp. St. § 1246) which provides:

"On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court,...