Horneman v. Brown

• Decision Date: 29 March 1934
• Citation: 190 N.E. 735,286 Mass. 65
• Parties: HORNEMAN v. BROWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

286 Mass. 65

190 N.E. 735

HORNEMAN

v.BROWN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 29, 1934.

Exceptions from Superior Court, Suffolk County; Broadhurst, Judge.

Action of tort by William C. Horneman, executor, against Mary H. Brown. Verdict for plaintiff for $12,375, and defendant brings exceptions.

Exceptions sustained.J. M. Morrison and R. N. Daley, Jr., both of Boston, for plaintiff.

L. C. Doyle and John J. Sullivan, both of Boston, for defendant.

RUGG, Chief Justice.

This is an action of tort brought to recover compensation for personal injuries alleged to have been caused by the gross negligence of the defendant, the driver of an automobile, with whom the plaintiff's intestate was riding as guest. The original plaintiff has deceased since the trial, but she will be termed the plaintiff, although the action is now being prosecuted by her executor. The plaintiff at the time of the accident was seventy-seven years old and the mother of the defendant. She had ridden many times before with the defendant but had never operated an automobile. She was riding on a pleasant July afternoon at the invitation of the defendant in an automobile owned by the husband of the defendant and registered in Massachusetts. The streets were dry. The defendant was driving in Boston or Brookline. The automobile struck a tree and the plaintiff was seriously injured. The plaintiff testified that as the automobile was going about thirty-five miles per hour the defendant put her hand back, opened her bag and took out a cigarette, holding it in her right hand, then she stooped down and drew an electric lighter from the dashboard and kept her head down looking toward the floor to light the cigarette and then she used her left hand to steady it and both hands were off the wheel. Then the plaintiff said ‘look out,’ and the automobile swerved on and off the sidewalk and struck the tree. There was no traffic on the street at the time. While the defendant was lighting the cigarette the plaintiff was not watching the road.

1. The contributory negligence of the plaintiff was an affirmative defence and the burden of proving it rested upon the defendant. G. L. (Ter. Ed.) c. 231, § 85. O'Connor v. Hickey, 268 Mass. 454, 458, 167 N. E. 746;O'Connell v. McKeown, 270 Mass. 432, 435, 170 N. E. 402. Although the question is somewhat close, we think that it could not rightly have been ruled as matter of law that the burden of proof had been made out. The testimony of the plaintiff was not inconsistent with due care on her part. In view of the speed of the automobile, the period of time covered by the culpable conduct of the defendant must have been very brief. The plaintiff was an elderly woman with no experience in operating motor vehicles. That she was alert for her safety is inferable from the fact of her outcry as soon as the automobile began to swerve. The case at bar on this point is similar to Kirby v. Keating, 271 Mass. 390, 171 N. E. 671;Gallup v. Lazott, 271 Mass. 406, 171 N. E. 658, and Caldbeck v. Flint, 281 Mass. 360, 183 N. E. 739. 2. A more difficult question is raised by the defendant's exception to the exclusion of evidence, offered by the attorney representing her at the trial, of statements made by her prior to the trial inconsistent with her statements on direct examination. The defendant was called as a witness by the attorney representing her and testified that she was the daughter of the plaintiff; that after the automobile turned into Harvard Street she put her hand into her handbag, took out a cigarette, put it in her mouth, leaned over and took the cigarette lighter from the dashboard, held it to the cigarette, and within the time that she took her eyes from the road and had her right hand on the lighter, she collided with the tree; that it might have been twenty-five seconds after she took her eyes off the road to look at the cigarette lighter that the accident happened; that she remembered that her mother said, ‘Look, Look, where we're going’; that the speed was about thirty-five miles an hour. The attorney for the defendant then proposed to inquire whether at the time she was in the hospital following the accident she stated to an investigator that she was driving twenty miles an hour, that she was looking straight ahead at the time of the accident, and that her mother at no time complained about the way she drove. He also stated that he expected that the defendant would deny making such statements and that the investigator would testify that he wrote down such a statement as the defendant told it to him and that she read it over but refused to sign it. Upon objection the offer of proof was excluded and exceptions duly taken in behalf of the defendant.

This testimony of the defendant in its essential aspects was the same as that given by the plaintiff. If believed, it would support a finding of gross negligence on the part of the defendant as the cause of the injuries to the plaintiff and would warrant a finding for the plaintiff. Meeney v. Doyle, 276 Mass. 218, 177 N. E. 6.

The proffered evidence of the prior statements made by the defendant inconsistent with her testimony given in court was only hearsay and had no probative force as to the truth of the facts so stated. Bloustein v. Shindler, 235 Mass. 440, 442, 126 N. E. 774;Rankin v. Brockton Public Market, Inc., 257 Mass. 6, 11, 153 N. E. 97, and cases cited. Commonwealth v. Festo, 251 Mass. 275, 279, 146 N. E. 700. The defendant's statement out of court set forth in the offer of proof showed no negligent conduct on her part and by itself constituted no admission against her interest. If this identical evidence had been offered on behalf of the plaintiff, it would have been admitted as a proper attack on the credibility of the defendant. If it had been offered on behalf of a co-defendant, it would also have been admissible. Sullivan v. Fugazzi, 193 Mass. 518, 79 N. E. 775. The evidence in its essential nature was not untrustworthy. It had no tendency in and of itself to mislead the jury or to obstruct justice. The fact that the attorney appearing for the defendant offered the evidence against the credibility of the defendant as a witness did not alter the essential nature of the statement or render it less reliable or credible or helpful in the search for the truth which was the aim and object of the trial.

The plaintiff contends that the proffered statement would have been inadmissible at common law and that it is not rendered admissible by any enabling statute. Plainly such evidece was not admissible at common law. It is a comparatively recent statutory change which permits parties to be witnesses at trials in civil causes. The earlier common-law discussions at to the rights and limitations of witnesses and the extent to which a party calling them vouched for their credibility had nothing to do with parties because in any event they could not be witnesses. Therefore cases like Commonwealth v. Starkweather, 10 Cush. 59, and Whitaker v. Salisbury, 15 Pick. 534, 545, have no relevancy. It was not until the enactment of St. 1857, c. 305, § 1, now G. L. (Ter. Ed.) c. 233, § 20, that parties to civil actions and proceedings were admitted to testify and to be called as witnesses by the opposite party. Clearly, under the terms of that statute a party who testified was comprehended within the term ‘witness.’ By the enactment of St. 1869, c. 425, now G. L. (Ter. Ed.) c. 233, § 23, the law of trials was further liberalized by a provision to the effect that a ‘party’ producing a witness shall not impeach his credit by evidence of bad character, but may contradict him by other evidence, and ‘may also prove that he has made at other times statements inconsistent with his present testimony.’ This phraseology is broad enough to comprehend a party within the term ‘wi...