Buckley v. Frankel

• Decision Date: 05 January 1928
• Citation: 159 N.E. 459,262 Mass. 13
• Parties: BUCKLEY v. FRANKEL (two cases). WALTERS, Inc., v. FRANKEL (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 13

159 N.E. 459

BUCKLEY

v.FRANKEL (two cases).

WALTERS, Inc.,

v.FRANKEL (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 5, 1928.

Exceptions from Superior Court, Suffolk County; Franklin T. Hammond, Judge.

Four actions, by Thomas Buckley and by Walters, Inc., each against Julia Frankel and against Bert Frankel, in which there were verdicts for the defendants. On exceptions by plaintiffs. Exceptions overruled.D. J. Lyne and J. P. Rooney, both of Boston, for plaintiffs.

M. J. Mulkern, of Boston, for defendants.

RUGG, C. J.

These are actions of tort brought to recover compensation for damage to person and property arising from a collision occurring at the intersection of two streets between a motor truck belonging to the corporate plaintiff and driven by the individual plaintiff and an automobile driven by the female defendant and owned by her husband. The cases were submitted to the jury, resulted in verdicts for the defendants, and come before us on exceptions by the plaintiffs.

[1][2] The female defendant was asked to describe her feelings immediately after the accident as she sat in her car and before alighting from it. She answered that she was stunned and then, on objection by the plaintiffs' attorney, the court ruled that she might answer. Substantially the same answer was given again and exception was saved. If it be assumed as argued in behalf of the plaintiffs that the first answer came before there was time to object, the proper course was to state that fact to the court and ask that the answer be stricken out. The court then would be in a position to determine at once whether justice required some relief and to grant it if required. Randall v. Peerless Motor Car Co., 212 Mass. 352, 99 N. E. 221;Commonwealth v. Johnson, 199 Mass. 55, 59, 85 N. E. 188. Apparently the judge attempted to accomplish that result. There was no error in the admission of the question and answer. It bore upon the capacity of the witness at that time to make accurate observations and to remember what happened.

[3] The request for instructions numbered 7 presented by the plaintiffs was to the effect that in determining the speed of the car driven by the female defendant the jury might consider the damage done to the truck and the position in which it was found after the collision. There was evidence to which the request was applicable. It was an instruction that might appropriately have been given. Kelsea v. Town of Stratford, 80 N. H. 148, 150, 118 A. 9;Duprat v. Chesmore, 94 Vt. 218, 222, 110 A. 305;Alabama Great Southern R. Co. v. Molette, 207 Ala. 624, 626, 93 So. 644.Maritzky v. Shreveport Rys. Co., 144 La. 692, 697, 81 So. 253. But it is not reversible error to refuse such a request in the circumstances here disclosed. Of course, it is the duty of the judge presiding over a jury trial to give full, fair, correct, and clear instructions as to the principles of law governing all the essential issues presented, so that the jury may understand their duty and be enabled to perform it intelligently. If he does this, it is not necessary that he single out particular facts for emphasis. Maxwell v. Massachusetts Title Ins. Co., 206 Mass. 197, 200, 92 N. E. 42;Hanley v. Eastern S. S. Corp., 221 Mass. 125, 135, 109 N. E. 167, Ann. Cas. 1917D, 1034;Altavilla v. Old Colony St. R. Co., 222 Mass. 322,110 N. E. 870;Herrick v. Waitt, 224 Mass. 415, 113 N. E. 205;Goldsmith v. Gryzmish, 238 Mass. 341, 344, 130 N. E. 671. As was said by Knowlton, J., in Hicks v. New York, N. H. & H. R. Co., 164 Mass. 424, 428, 41 N. E. 721, 723 (49 Am. St. Rep. 471):

‘It is largely a matter of discretion for the presiding judge as to how far he will discuss different phases of the testimony upon a particular subject and give specific instructions, each founded upon only a part of the testimony bearing upon the subject. If he gives full and sufficient instructions, which enable the jury to understand the law applicable to all branches of the case, it is not a ground of objection that he declines to take each fragment of the testimony and to state a conclusion of law applicable to a possible finding founded upon it.’ Bourne v. Whitman, 209 Mass. 155, 164, 95 N. E. 404,35 L. R. A. (N. S.) 701;Ayers v. Ratshesky, 213 Mass. 589, 593, 101 N. E. 78.

See Mahoney v. Gooch, 246 Mass. 567, 571, 141 N. E. 605.

Adequate instructions had been given touching the subject of the speed of the automobile driven by the female defendant as bearing upon liability.

[4] The same principle applies to the refusal to give the remaining requests of the plaintiffs now relied upon. They relate to the right of way of the parties as they approached and reached the square at the intersection of the two streets. We think that the instructions actually given afforded sufficient guidance to the jury in the light of the testimony.

[5] Earnest argument has been addressed to us in behalf of the plaintiffs that the charge was open to exception in that it was argumentative and put emphasis upon inconsistencies in the testimony of the plaintiff, Buckley, without calling attention to inconsistencies in the testimony of the female defendant, these being the two witnesses upon whose testimony the verdict of the jury must be mainly founded. The duties of a judge presiding over a jury trial have been stated in several recent decisions. It was said in Whitney v. Wellesley & B. St. R. Co., 197 Mass. 495,...