Bergdoll v. Suprynowicz

Decision Date02 April 1971
Citation268 N.E.2d 362,359 Mass. 173
PartiesDavid J. BERGDOLL et al. v. Marian SUPRYNOWICZ et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

John B. Killilea, Boston, for defendants.

Timothy J. McInerney, Boston, for plaintiffs.

Before TAURO, C.J., and SPALDING, SPIEGEL, REARDON and BRAUCHER, JJ.

SPALDING, Justice.

The declaration in this action of tort contains four counts. in counts 1 and 2 recovery is sought from the operator and owner, respectively, of the motor vehicle involved in the accident. In counts 3 and 4, for consequential damages, recovery likewise is sought from the operator and owner, respectively. Verdicts were returned for the plaintiffs on all counts. The judge reported two questions for decision.

(1) The first question arises out of the denial of the defendants' motion to strike certain evidence. Dr. Kittredge Anderson, a qualified neurologist called by the plaintiffs, was of opinion that the minor plaintiff had sustained a cerebral concussion and contusion as a result of the motor vehicle accident. This opinion was based on his physical examination of the minor plaintiff, the history obtained from him, his study of the hospital records, and his readings of tracings produced by an electro-encephalogram. This evidence was introduced without objection. On cross-examination it appeared that Dr. Anderson was not present when the electro-encephalogram was taken, and that he did not know whether the machine was in good working order. It further appeared that if the machine is not in good working order, the eletro-encephalogram (or tracing) could be in error; that the smallest movement on the part of the person tested (moving a finger, blinking an eye) could 'produce artifacts' which, if not deleted by the technician making the test, could result in an erroneous tracing. The defendants introduced no evidence that the electro-encephalogram was improperly taken, nor was there any evidence that there was any defect in the machine or negligence on the part of the technician. Following the cross-examination of Dr. Anderson, the defendants made a motion to strike his testimony, which was denied. We are of opinion that the judge did not err in denying the motion. The possibility of error in the taking of an electro-encephalogram was brought out on cross-examination and the weight of the doctor's evidence, which was by no means based exclusively on the electro-encephalogram, was for the...

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26 cases
  • Tyree v. Keane
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 14, 1987
    ...on the ground that the verdict is against the weight of the evidence rests in the discretion of the judge." Bergdoll v. Suprynowicz, 359 Mass. 173, 175, 268 N.E.2d 362 (1971). We have reviewed the evidence relating to the claims against Hendrigan. There was no 2. We next address the appeal ......
  • Turnpike Motors, Inc. v. Newbury Group, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • July 16, 1992
    ...404 Mass. 515, 520, 536 N.E.2d 344, cert. denied, 493 U.S. 894, 110 S.Ct. 242, 107 L.Ed.2d 192 (1989), quoting Bergdoll v. Suprynowicz, 359 Mass. 173, 175, 268 N.E.2d 362 (1971). The judge, however, "should not decide the case as if sitting without a jury; rather, the judge should only set ......
  • Moose v. Massachusetts Institute of Technology
    • United States
    • Appeals Court of Massachusetts
    • August 26, 1997
    ...Mass. 515, 520, 536 N.E.2d 344, cert. denied, 493 U.S. 894, 110 S.Ct. 242, 107 L.Ed.2d 192 (1989), quoting from Bergdoll v. Suprynowicz, 359 Mass. 173, 175, 268 N.E.2d 362 (1971). The judge's denial of the defendants' motion for a new trial "will only be disturbed if the judge abused his di......
  • Clifton v. Mbta
    • United States
    • Massachusetts Superior Court
    • February 3, 2000
    ... ... 515, 520, 536 ... N.E.2d 344, cert. denied , 493 U.S. 894, 110 S.Ct ... 242, 107 L.Ed.2d 192 (1989), quoting Bergdoll v ... Suprynowicz , 359 Mass. 173, 175, 268 N.E.2d 362 (1971) ... The judge, however, "should not decide the case as if ... sitting without a ... ...
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