Bernasconi v. Bassi

• Decision Date: 13 October 1927
• Citation: 158 N.E. 341,261 Mass. 26
• Parties: BERNASCONI v. BASSI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 26

158 N.E. 341

BERNASCONI

v.BASSI.

Supreme Judicial Court of Massachusetts, Berkshire.

Oct. 13, 1927.

Exceptions from Superior Court, Berkshire County; C. T. Callahan, Judge.

Action of tort by Battista Bernasconi, per prochein ami, against Salvatore Bassi, to recover for personal injuries in collision between plaintiff's bicycle and defendant's automobile. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

Alberti & Alberti, of Pittsfield, for plaintiff.

J. B. Cummings and J. M. Rosenthal, both of Pittsfield, for defendant.

CROSBY, J.

[1] This is an action of tort to recover for personal injuries caused by the collision of a bicycle with an automobile on Hubbard street, in Lenox. The plaintiff testified that at the time of the accident he was 11 years old; that he rode a bicycle down a path leading from the northerly sidewalk of the street and crossed to the extreme southerly side, and while proceeding along the road in an easterly direction he saw the defendant coming toward him on the northerly side of the road; that there was ample space for them to pass each other; that the defendant when two or three feet from him suddenly turned his automobile toward the south and struck the bicycle, throwing the plaintiff therefrom and causing the injuries complained of. The defendant and another witness called by him testified that the plaintiff lost control of his bicycle and fell off it about eight feet from the automobile; that the bicycle rolled under the car and was broken; that the plaintiff laid on the ground two or three feet from the car and did not come in contact with it. Upon this conflicting evidence the facts were properly left for the determination of the jury.

[2] The trial judge instructed the jury in part as follows:

‘Here the contradictions in the essentials of the case are so violent as to be somewhat disconcerting. Either this boy plaintiff has organized a fraudulent claim upon which he hopes to realize a certain amount of money from the defendant, or this defendant has organized a fraudulent defense for the purpose of escaping his just obligations to a victim of his wrongdoing.’

The defendant excepted to this portion of the instructions as a charge upon the facts, in violation of G. L. c. 231, § 81. It could not properly have been assumed by the judge that the plaintiff had made a fraudulent claim nor that the defendant had prepared a fraudulent defense. Notwithstanding this erroneous instruction it clearly appears that immediately thereafter and repeatedly afterwards the judge told the jury that it was for them to determine the truth in view of the conflicting statements of the parties respecting the cause of the accident. It seems plain from the entire charge that the jury were not misled by the foregoing statement of the court and that the defendant was not prejudiced thereby. Gray v. Standard Life & Accident Ins. Co., 170 Mass. 558, 559, 49 N. E. 921;Plummer v. Boston Elevated R. Co., 198 Mass. 499, 84 N. E. 849. Accordingly this exception cannot be sustained. The case is distinguishable in its facts from Commonwealth v. Foran, 110 Mass. 179, cited by the defendant.

[3] The only other exception relates to the admission in evidence of a conversation which the plaintiff's father testified he had with the defendant at the doctor's office where the plaintiff had been taken after the accident. This witness said:

‘I told him [the defendant]: ‘You got to pay everything I do for my boy.’ And the defendant replied: ‘You bring your boy in the hospital. You bring your boy in the hospital, and to-morrow, and after to-morrow I come in...