O'hare v. Gloag
Decision Date | 16 April 1915 |
Citation | 108 N.E. 566,221 Mass. 24 |
Parties | O'HARE v. GLOAG. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Testatrix was struck and injured by an automobile owned and operated by defendant. The declaration alleged that the accident was caused by reason of defendant's negligent operation of the automobile, as well as by his physical unfitness to operate it. A physician testified on direct examination that in his opinion it was not a safe thing for a man with a leg amputated above the knee, and with an artificial leg supplied, to operate a car. On cross-examination defendant asked the following question:
Doctor assume that I have driven a car since April, 1912, until Christmas Day of last year, and that I have gone beyond Concord in New Hampshire in one direction, and that I have driven several times to Scituate, North Scituate, and the country round about there, that I drive constantly round the Blue Hills, and I drive drive constantly through The Fenway would you think, as a matter of opinion, my understanding being that you simply expressed a matter of opinion in your evidence, with reference to the wooden leg, assuming I have driven to that extent, would you then say that I was able properly to operate a runabout of the year 1912, assuming its equipment to be in good order? Mr. Fuller: I object. The Court: You may have it. Mr. Fuller: Exception to it. Q. What is your answer? A. Assuming all the conditions to be as you have given them, I should say that, against the common-sense principle, actions speak louder than words, was the answer. Q. And that therefore I was able properly to run that runabout car? A. So it would seem from past performance; yes.
Chas Toye and John J. O'Hare, both of Boston, for plaintiff.
Ralph W. Gloag, of Boston (Teresa J. Clarke, of Boston, on the brief), for defendant.
This is an action brought under R. L. c. 171, § 2, St. 1907, c. 375, and St. 1911, c. 31, to recover for the conscious suffering and death of the plaintiff's testatrix, who was struck by an automobile operated by the defendant and received injuries which resulted in her death.
1. There was evidence upon the question whether the deceased consciously suffered as a result of her injuries, and that question was properly submitted to the jury.
2. The defendant contends that there was no evidence from which it could have been found that the plaintiff was entitled to recover for the death of his testatrix. There is no allegation in the declaration that the testatrix was survived by a child or children, or by any persons as next of kin. There is nothing in the record to show that this question was raised at the trial. The case comes before us only upon the exceptions of the plaintiff. We do not think under the circumstances that this question properly can be raised at this time by the defendant. The case was submitted to the jury by the trial judge upon counts for conscious suffering and for death, and a verdict was returned for the defendant upon both counts. The instructions upon these issues seem to have been correct and sufficient, although the plaintiff strenuously contends to the contrary. Still since no exception was taken to the charge, no question as to its correctness can be raised at this time.
3. The exceptions to the refusal of the judge to give the plaintiff's requests numbered 17, 18, 19, 20, 21, 22 and 23 cannot be sustained. These requests relate to the failure of the defendant in his answer to question number 12 to disclose to the Massachusetts Highway Commission in his application for license that he had any physical incapacity or infirmity. His failure to make such disclosure did not of itself render the license void, nor was he a trespasser in operating the automobile upon the highway. While the failure of an applicant to make such disclosure might be ground for revoking his license, still, having been regularly issued, it is valid unless and until revoked by proper authority. It follows that none of the requests properly could have been given. Besides the evidence was undisputed that at the time of the accident the defendant was accompanied by one Tenney, who was a licensed operator and had his license with him at the time. The court properly instructed the jury that the defendant had a right to run his car although not licensed, provided he had a licensed operator with him. St. 1909, c. 534, § 10.
4. The defendant was allowed, subject to the plaintiff's exception, to explain his understanding of the meaning of question number 12, in the application for license to operate an automobile, in connection with the answer which he made to that question. But as the application for license was incompetent and should not have been admitted, we are of opinion that the exception should be overruled.
5. The question put by the defendant to the witness Scannell on cross-examination was admissible within the discretion of the judge.
6. The plaintiff in his brief has argued that the question put to the defendant, 'And how long had you been operating an automobile?' was admitted, together with the answer, subject to the plaintiff's exception. In the bill of exceptions as originally filed, it is recited, just before this question was put, that 'subject to the plaintiff's objection and exception, the witness then testified as follows.' The bill of exceptions afterwards was amended by striking out the words 'subject to the plaintiff's objection and exception.' The record shows that 'this amendment is agreed to by both parties.' Although it appears that this exception was originally saved, it was stricken out by the allowance of the amendment.
7. The plaintiff in his brief has argued that the defendant's testimony as to his instructions and experience, and also as to his study of the construction and operation of automobiles was...
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