Braun v. Bell

• Decision Date: 14 January 1924
• Citation: 142 N.E. 93,247 Mass. 437
• Parties: BRAUN v. BELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

247 Mass. 437

142 N.E. 93

BRAUN

v.BELL.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 14, 1924.

Exceptions from Superior Court, Suffolk County; Robert F. Raymond, Judge.

Action of tort by Sarah G. Braun against Henry C. Bell for personal injuries received when struck by defendant's automobile. Verdict for plaintiff for $4,300, and defendant brings exceptions. Exceptions sustained.

F. R. Mullin and P. F. Spain, both of Boston, for plaintiff.

J. F. Cavanagh, of Boston, for defendant.

CARROLL, J.

The plaintiff was struck and injured by an automobile of the defendant, while standing on a public highway in Boston, near the inbound car rail, waiting for an electric car. The accident happened about 5 o'clock on the morning of January 2, 1921. The plaintiff testified that she was on her way to her place of business; that when she left the curbstone, the electric car she was about to enter was nearly three car lengths away; that after crossing a portion of the highway she stood about 2 feet from the car rail ‘opposite the stop’; that when the electric car was about one length from her the defendant's automobile came from the rear of the car, passing to the right at the rate of 25 miles an hour, and struck her. The conductor of the electric car testified that the automobile was following the car on the inbound track; that it swerved to the right and passed him at the rate of 25 miles an hour; and that he heard no signal from the automobile.

[1] The plaintiff's due care was for the jury to decide on all the evidence. When she crossed the street she looked ‘up and down Harvard street.’ There were lights on the street, one at each side of the stopping place; ‘there were no vehicles on the street;’ and as she was waiting for the car the automobile suddenly turned from the rear of the electric car, and, moving at the rate of 25 miles an hour, struck her. She stated that ‘the lights blinded me so I couldn't do anything,’ referring to the lights on the automobile. The driver of the automobile could have seen the plaintiff, and by the use of proper caution avoided her. His negligence was properly submitted to the jury. There was evidence of the defendant's admissions tending to show that the operator of the automobilie was his agent, and engaged in his business.

[2][3][4] The plaintiff was married January 26, 1921. She was allowed to introduce evidence, subject to the exception of the defendant, that she had paid to doctors and to an osteopath the sum of $94. For medical services rendered to the plaintiff after her marriage the husband was presumed to be liable, and for this expense the wrongdoer was liable to him, Driscoll v. Gaffey, 207 Mass. 102, 108, 92 N. E. 1010; but the wife may bind her own estate to pay for medical services rendered her, and when properly pleaded she may recover for this expense in an action for personal injuries. See Baldwin v. Western Railroad, 4 Gray, 333;Charron v. Day, 228 Mass. 305, 117 N. E. 347;Sherry v. Littlefield, 232 Mass. 220, 122 N. E. 300. It does not appear that the plaintiff in her declaration alleged that she suffered any special damages because of these expenses. If this fact had been called to the attention of the judge it would have been error to admit the evidence; but the defendant, in order to rely on this exception to the evidence because inadmissible under the declaration, should have called the judge's attention specifically to the state of the pleadings; otherwise he could not be heard afterwards in support of an exception on this ground. Noyes v. Caldwell, 216 Mass. 525, 527, 104 N. E. 495.

[5][6] An employee of the defendant, a witness called by him on cross-examination, testified that after the accident he had taken an automobile from the defendant's garage, ‘as a result of which there was some trouble.’ The witness was then asked, against the defendant's exception, if he was arrested because of this. He answered, ‘No.’ He admitted, however, that he had been summoned to court, and was acquitted of the charge; that the defendant was one of his witnesses, but was not ‘instrumental in having lenient disposition of the matter made for [him].’ The witness could not be discredited by asking him if he was charged with the commission of a crime and acquitted. See Commonwealth v. Homer, 235 Mass. 526, 127 N. E. 517. The plaintiff contends that this evidence was admissible to show that the witness was biased in the defendant's favor because of the assistance given him by the defendant at the time he was...