Hathaway v. Checker Taxi Co.

• Decision Date: 06 June 1947
• Citation: 73 N.E.2d 603,321 Mass. 406
• Parties: EDNA A. HATHAWAY v. CHECKER TAXI COMPANY (and a companion case [1]).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

321 Mass. 406

73 N.E.2d 603

EDNA A. HATHAWAY v. CHECKER TAXI COMPANY (and a companion case ^[1]).

Supreme Judicial Court of Massachusetts, Suffolk.

June 6, 1947

March 3, 1947.

Present: FIELD, C.

J., QUA, DOLAN WILKINS, & SPALDING, JJ.

Negligence, Motor vehicle, Taxicab. Practice, Civil, Charge to jury Exceptions: general exception; New trial.

A general exception to an extensive portion of a charge to a jury upon a material issue is without merit if the excepting party does not set forth objection to specific language alleged to constitute error nor request definite instructions as to the subject matter.

In an action by a passenger against the proprietor of a taxicab for injuries sustained in a collision between the cab and an automobile which, approaching from the opposite direction in a two lane highway, had jumped a raised catwalk separating the lanes, a portion of the charge to the jury which dealt with the duty of the defendant in the emergency was substantially in accordance with decisions of this court and a general exception thereto was without merit.

The provisions of G. L. (Ter. Ed.) c. 231, Section 81, were not violated by a portion of a charge to a jury stating that the jury should consider

"the interest of the people who testified," that the plaintiffs "are in here looking for money, and if they have been injured through the negligence of the defendant they have got a right to be paid money, but a person's financial interest in a case will often affect his testimony.

The testimony of an interested witness should be examined by the jury with more care and scrutiny than the testimony of some witness who has no financial interest or any other interest in the case. We all know what human nature is. . . . A man doesn't always lie because money is involved but you may say it is an incentive to depart from the truth"; and also making it clear to the jury that all questions of fact and the credit due to witnesses were questions solely for them; and an exception to the charge on the ground that the jury were not also instructed "that interested people might be telling the truth" was without merit.

Instructions to the jury, at the trial of an action by a passenger against the proprietor of a taxicab, on the question of the care required of the operator of the cab, were adequate and revealed no reversible error, and an exception to the refusal of a request for a ruling that the defendant owed the plaintiff "the highest degree of care consistent with the operation of its business" was overruled.

A party, on a motion to set aside a verdict and grant a new trial, cannot as a matter of right raise a question of law which might have been raised before verdict.

Upon the record, no abuse of discretion by the trial judge was shown in the denial of a motion for a new trial based on an allegation that the charge to the jury did not adequately set forth the rights of the plaintiff and unduly emphasized the rights of the defendant to the prejudice of the plaintiff.

TWO ACTIONS OF TORT. Writs in the Municipal Court of the City of Boston dated April 8, 1943.

On removal to the Superior Court, the cases were tried before Donahue, J. C. S Walkup, Jr., for the plaintiffs.

W. L. Allen, for the defendant.

SPALDING, J. These are two actions of tort. In one the female plaintiff seeks compensation for personal injuries sustained by her. In the other recovery for consequential damages is sought by her husband. Verdicts were returned for the defendant. The cases are here on exceptions taken by the plaintiffs to certain portions of the charge and to the denial of motions for a new trial.

The evidence material to the issues raised is as follows: In the afternoon of April 21, 1942, one of the defendant's taxicabs, in which the plaintiffs were riding as passengers, collided with an automobile on the overpass at the Cottage Farm Bridge in Cambridge. It had been drizzling and the roadway was wet. The taxicab was proceeding west on the lane reserved for outbound traffic, and the automobile with which it collided (referred to in the testimony as the Alebord automobile) was headed east on the inbound lane. Each lane was twenty-five feet wide, and between them ran a so called catwalk seven inches high and three feet wide. Immediately prior to the accident the Alebord automobile, while it was proceeding upgrade on that part of the overpass which was floored with steel skidded and went across the catwalk onto the outbound lane where it collided with the taxicab in which the plaintiffs were riding. The evidence was conflicting as to the precise manner in which the accident occurred. There was evidence that the Alebord automobile crossed suddenly over the catwalk and struck the taxicab which was on the right hand side of the outbound lane; that at the time of the collision the taxicab had slowed down to a speed of ten miles per hour; and that when the Alebord automobile started across the catwalk the taxicab was twenty-five to fifty feet away. There was also evidence that the taxicab while on the overpass was travelling at a speed of thirty-five to forty miles per hour; that the Alebord automobile had crossed the catwalk and was in the outbound lane when the taxicab was one hundred feet away; and that the taxicab without diminishing its speed ran into the Alebord automobile, which was not in motion. The female plaintiff sustained severe injuries.

1. The plaintiffs excepted to that part of the charge which dealt with the defendant's duties in an emergency. ^[1] The judge's charge on this aspect of the case is set forth in the footnote. ^[2] This exception is without merit. The instructions on this point stated the law substantially in accordance with our decisions. See Lemay v. Springfield Street Railway, 210 Mass. 63 , 67; Massie v. Barker, 224 Mass. 420 , 423; Tuttle v. Connecticut Valley Street Railway, 239 Mass. 553 , 556; Donovan v. Mutrie, 265 Mass. 472; Turner v. Berkshire Street Railway, 292 Mass. 313 , 315-316. Moreover the objection to this part of the charge was general. No specific error in it was pointed out, nor were any definite instructions asked for. It is the rule that general objections to even a portion of a charge are not looked upon with favor. If the plaintiffs objected to any specific language used, they should have brought it to the attention of the judge in order to save a valid exception. Callahan v. Fleischman Co. 262 Mass. 437 , 438. Ristuccia v. Boston Elevated Railway, 283 Mass. 529 , 535. Mitchell v. Lynn Fire & Police Notification Co. Inc. 292 Mass. 165 , 168. Mansell v. Larsen, 311 Mass. 607, 613-614.

2. Both plaintiffs testified.

It could have been found that the male plaintiff, whose testimony was the principal evidence for the plaintiffs on the issue of liability, had made statements after the accident which differed materially from what he testified to at the trial. In his charge the judge said, "In analyzing testimony, gentlemen, . . . as you have got to do in this case before you take money out of the pocket of one person or corporation and hand it to somebody else, you have got to consider the interest of the people who testified. Mr. and Mrs. Hathaway are in here looking for money, and if they have been injured through the negligence of the defendant they have got a right to be paid money, but a person's financial interest in a case will often affect his testimony. The testimony of an interested witness should be examined by the jury with more care and scrutiny than the testimony of some witness who has no financial interest or any other interest in the case. We all know what human nature is. You may say it isn't much different in the rich or poor, that it is about the same everywhere you find it." The judge said later on in the charge, "A man doesn't always lie because money is involved but you may say it is an incentive to depart from the truth." Plaintiffs' counsel at the conclusion of the charge said to the judge, "You told . . . [the jury] very emphatically that interested people might be led to do all kinds of things and then at no time said that interested people might be telling the truth. May I have an exception to that?"

This exception must be overruled. The judge was not required to state that interested witnesses might be telling the truth. That was implicit in what he said. There is nothing in the statute (G L. [Ter. Ed.] c. 231, Section 81) forbidding judges to charge on the facts which prohibits them from giving to juries "guides or illustrations . . . as to weighing the evidence of witnesses, and as to tests by which their reliability or credibility may be determined." Plummer v. Boston Elevated Railway, 198 Mass. 499, 515. Harrington v. Harrington,...