Curtin v. Benjamin

• Decision Date: 26 March 1940
• Parties: JOHN J. CURTIN v. GEORGE A. BENJAMIN. JOHN J. LOONIE, administrator, v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

305 Mass. 489

26 N.E.2d 354

JOHN J. CURTIN v. GEORGE A. BENJAMIN. JOHN J. LOONIE, administrator, v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

March 26, 1940

February 8, 1940.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, & COX, JJ.

Evidence, Relevancy and materiality. Practice, Civil, Exceptions: general exception, whether error shown.

Evidence that immediately after a collision of automobiles travelling in opposite directions the left front tire of the automobile operated by the plaintiff was "very smooth" and had a large hole in it and none of the other tires was "blown" was relevant on the issue whether the left front fender and wheel of that automobile struck the automobile operated by the defendant or whether the left rear side of the plaintiff's automobile was struck by the defendant's automobile.

A general exception to the admission of evidence competent for some purpose will not be sustained in the absence of any request by the excepting party to limit its use.

TWO ACTIONS OF TORT. Writs in the Municipal Court of the City of Boston dated April 30, 1937.

On removal to the Superior Court, the actions were tried together before Brogna, J.

J. J. Mackin, for the plaintiffs.

J. W. White, (A.

F. Bickford with him,) for the defendant.

COX, J. These are two actions to recover damages for personal injuries and death, tried with five other personal injury and property damage cases, arising out of the collision, on the evening of September 7, 1936, of an automobile travelling west, driven by the plaintiff Curtin, in which the other plaintiff's intestate was riding, and an automobile travelling east driven by the defendant. Whether the collision occurred on the north or south side of the road was in dispute, as was the location of a gouge mark in the vicinity of the center of the road. It was not in dispute that, after the collision the Curtin automobile travelled in a generally westerly direction about one hundred twenty-five feet, swinging to the south side of the road where it came to rest against some trees entirely off the travelled portion of the way. The speed of the respective automobiles and the manner of collision were in dispute. The evidence introduced by the defendant was to the effect that, as his automobile was travelling at a speed of twenty-seven or twenty-eight miles an hour, the Curtin automobile swung out of line, came across the road and struck his automobile, the point of contact being between the left front fender and wheel of the Curtin automobile and the left front fender, wheel and whole left side of his automobile. The evidence in behalf of the plaintiffs was to the effect that, as the Curtin automobile was proceeding at the rate of twenty-eight to thirty miles an hour, the defendant's automobile turned out of line, came across the center of the road and struck the

Curtin automobile turning it over, the point of contact being between the left side at the rear door of the Curtin automobile and the left front fender and wheel of the defendant's automobile. The jury found for the defendant and the only exceptions of the plaintiffs are to the admission of certain evidence.

There was evidence from witnesses who saw the Curtin automobile at the scene of the accident that the photographs introduced in evidence fairly represented it as it then appeared. See Smith v. Gammino, 225 Mass. 285 , 286. For purposes of the case it is enough to say that the photographs show a flat tire on the left front wheel. After the collision, this automobile was towed to a garage, and there was evidence from the garage owner that the condition of the tires on the four wheels was the same on February 2, 1937, as it was on the evening of the collision, right after the automobile had been towed to the garage. An expert was permitted to testify, over the plaintiffs' exception, that the tires were "smooth, very smooth; no treads on the tire; especially the tire that was on the left front; that was very very smooth." ^[*] He also testified that the tire was "blown," but this testimony was, at that point in the trial, struck out. The witness was then asked to describe the tire "rather than by saying it was blown. Was there any air in the tire?" He answered: "No." He then was asked if he could tell what else there was about the tire in addition to its being smooth, and, over the objection and exception of the plaintiffs, was allowed to testify that it had a big hole in it. In answer to the question: "Is that what you refer to that was blown?" he answered, without objection, "Yes." The plaintiffs also excepted to the question whether any other tire was "blown," to which the witness answered: "No, sir." The record does not disclose whether the owner of the Curtin automobile brought suit to recover for his damages.

We are of opinion that there was no reversible error in permitting the expert to testify as to the condition of the tires on February 2, 1937, when he said he examined them. We do not intimate, however, that this was a subject matter requiring expert testimony. The jury could have found that the condition of the tires when examined was the same as it was at the scene of the collision. Cutter v. Hamlen, 147 Mass. 471 , 476. Miller v. North Adams, 182 Mass. 569 , 571. Compare Leslie v. Glazer, 273 Mass. 221 , 224, 225. Furthermore, there was no direct evidence that there had been any change in the condition of the tires. Toland v. Paine Furniture Co. 179 Mass. 501 , 504, 505. Droney v. Doherty, 186 Mass. 205 . Boyd v. Taylor, 207 Mass. 335 , 337. See McGrath v. American Express Co. 219 Mass. 314 , 317.

It is the usual practice to admit evidence of the condition of automobiles and other...