DeWitt v. Wells

• Citation: 200 N.E. 574,294 Mass. 65
• Parties: DEWITT v. WELLS.
• Decision Date: 07 March 1936
• Court: United States State Supreme Judicial Court of Massachusetts

294 Mass. 65

200 N.E. 574

DEWITT

v.WELLS.

Supreme Judicial Court of Massachusetts, Middlesex.

March 7, 1936.

Exceptions from Superior Court, Middlesex County; Macleod, Judge.

Action of tory by Newton A. Dewitt against Ralph H. Wells. The superior court entered judgment on a verdict for defendant, and plaintiff brings exceptions.

Exceptions overruled.

J. Lewitan, of Boston, for plaintiff.

J. H. Gilbride, of Lowell, for defendant.

RUGG, Chief Justice.

This action of tort arises out of a collision between automobiles owned and operated by the plaintiff and defendant respectively. The plaintiff seeks to recover compensation for personal injuries and property damage alleged to have been sustained by him as a result of the negligence of the defendant. A verdict was returned in favor of the defendant.

The plaintiff excepted to the recital by the presiding judge in his charge of an imaginary epitaph which might be thought to be illustrative of rights of automobilists at an intersection of streets. Thereupon the trial judge stated that he might ‘have yielded somewhat to a perverted sense of humor’ in repeating the quatrain. After further comments of the same general tenor the incident was closed with the statement to the jury: ‘I think the applicabilityof it appeared in connection with what I was saying, but it was perhaps hardly dignified to use it, and you are to forget it.’ It is not necessary to determine whether there was any legal error in the use of the rhyme. Picquett v. Wellington-Wild Coal Co., 200 Mass. 470, 474, 86 N.E. 899;Fournier v. Zinn, 257 Mass. 575, 577, 154 N.E. 268. The jury plainly were directed utterly to disregard it. It must be presumed that this instruction was followed. Muller v. Powers, 174 Mass. 555, 55 N.E. 323;Stricker v. Scott, 283 Mass. 12, 14, 15, 186 N.E. 45;Cronan v. Armitage, 285 Mass. 520, 528, 190 N.E. 12.

During the charge the judge stated with respect to damages that it was not disputed that the plaintiff ‘made a substantial recovery, and he was apparently able to be out driving an automobile by the first of January following the accident.’ He then said: ‘And if there is any place where a man with limited faculties ought not to be, it is on the highway, driving a car, in these days of congestion in the highways. And it is for you to say, having seen him on the stand, as to how far there has been any real impairment of his faculties as the result of that accident; if there is any lowering, any letting...