Blackman v. Coffin
| Citation | 15 N.E.2d 469,300 Mass. 432 |
| Parties | VIOLET BLACKMAN v. HARRY R. COFFIN. |
| Decision Date | 01 June 1938 |
| Court | United States State Supreme Judicial Court of Massachusetts |
February 9, 1938.
Present: RUGG, C.
J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.
Evidence Admissions, Affecting credibility of witness, of criminal proceedings, Admitted generally, Conflicting statements of witness. Negligence, Gross, Motor vehicle, In use of way Contributory.
On the issue whether a defendant was grossly negligent in operating an automobile at a certain time and place, his affirmative answer to an interrogatory propounded to him, whether he was the person "who was found guilty" by a certain court "for operating an automobile while under the influence of intoxicating liquor" at the same time and place, was properly excluded, the answer not constituting an admission of guilt nor, with no evidence of sentence, affecting his credibility.
Facts set forth in a statement in writing by a plaintiff, given to the defendant in an action for personal injuries and introduced in evidence by the defendant and admitted generally, which were more favorable to the plaintiff than his own testimony and were not unequivocally repudiated by him in later testimony, were proper for consideration by the jury.
Evidence showing intoxication of the operator of an automobile, known by a passenger therein, excessive speed, persistent ignoring of remonstrances by the passenger, and inattention to dangers in "considerable traffic," required submission to the jury of the issues of gross negligence of the operator and contributory negligence of the passenger.
TORT. Writ in the Superior Court dated July 23, 1935. A verdict for the defendant was ordered by M. Morton, J. The plaintiff alleged exceptions.
The case was submitted on briefs.
H. F. Wood & J.
L. Burns, for the plaintiff.
T. H. Mahony & R.
J. Coffin, for the defendant.
This is an action of tort to recover for personal injuries sustained by the plaintiff while riding as a guest in an automobile owned and operated by the defendant. The case was referred to an auditor whose findings of fact were not to be final and who filed his report in which he found for the defendant. Thereafter the case was tried to a jury, and now comes before us on the exceptions of the plaintiff to the exclusion of certain evidence, and to the action of the trial judge in directing a verdict for the defendant at the close of the evidence.
The plaintiff testified in direct examination substantially as follows: On the evening of June 15, 1935, the defendant called on the plaintiff at her home on Upland Road in Cambridge, and invited her to go for a ride in his automobile. Before leaving the plaintiff drank two "weak gin and ginger-ales" and the defendant "had" three. The parties thereafter left the plaintiff's home and the defendant drove the plaintiff to her sister's home in Arlington. Shortly after their arrival the defendant drove the plaintiff, her sister and the latter's husband to Massachusetts Avenue, where the plaintiff's sister did some shopping. The defendant then drove them back to the home of the plaintiff's sister, where all remained in the automobile until about 11:30 P.M. The plaintiff's sister and her husband then entered their home, and the defendant started to drive the plaintiff home. At that time the defendant; seemed to the plaintiff to be in full possession of his faculties and perfectly sober. The plaintiff did not notice anything unusual about the defendant on the way home until he started to speed up on Massachusetts Avenue. Before the accident happened he began to "drive so terribly quickly" that the plaintiff said to him, "Please go slower . . . Please be careful." She "was frightened and he said nothing." She "thought" the "car" was going between forty and fifty miles an hour. The defendant did not slow down and at a point near the intersection of Massachusetts Avenue and Tannery Street
(which is distant between one and a quarter to two miles from the home of the plaintiff's sister) the automobile collided with the beacon on a safety island. The plaintiff was thrown forward and her "head went through the windshield." She was removed to a hospital where eight stitches were taken down the side of her face and five across one of her kneecaps. The plaintiff called her sister and the latter's husband as witnesses. They testified that the defendant had nothing to drink at their home on the night in question, and that there was nothing about the defendant's conduct in driving the automobile while they were in it which attracted their attention, and that he appeared to be perfectly sober and in full possession of his faculties.
While in the hospital the plaintiff made a statement relative to the accident which was reduced to writing and which she signed. The statement was put in evidence by the defendant as an exhibit, and recites that when the defendant called at her home he told her that "he had had some beer"; that at that time she saw nothing in his actions that would indicate that he was in any way intoxicated; that before they left the plaintiff's home they both had three highballs made of gin which the defendant had brought with him; that when driving to the plaintiff's sister's home the defendant's "driving was not very bad"; that the plaintiff did not consider it very dangerous but she did ask him "to drive slow," which he did; that while at her sister's home the defendant had one highball; that as they started to return to the plaintiff's home the defendant was cheery, "At this time he was noticeably feeling his drinks"; that as they left the defendant's driving was somewhat erratic and the plaintiff asked him to "drive slow"; that as they drove down Massachusetts Avenue the defendant was not driving at an excessive rate of speed; that as they approached the intersection of Tannery Street, the defendant was driving "astraddle" of the Boston in-going car line; that then "a car came up from behind us and to our right," and was about parallel "with us when we hit the traffic beacon post"; that the plaintiff thought that the defendant was trying to avoid the other "car" to his right when he hit the post; that just before the defendant's vehicle hit the post, the plaintiff said
On cross-examination prior to the introduction in evidence of that written statement the plaintiff testified substantially as on direct examination and repudiated the declarations contained in her written statement that the defendant had a highball at her sister's home. She reiterated that the defendant appeared to be perfectly sober and in full possession of his faculties up to the time they got on Massachusetts Avenue "on the home trip," and asserted that the "only criticism that she had of [the defendant's] driving was the speed at which he was travelling -- nothing else." and that she did notice some automobile "come up beside them, travelling in the same direction -- not specially on their right." In redirect examination after the introduction in evidence of that written statement the...
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