Kenyon v. Hathaway

• Decision Date: 15 January 1931
• Citation: 274 Mass. 47,174 N.E. 463
• Parties: KENYON v. HATHAWAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 47

174 N.E. 463

KENYON

v.HATHAWAY.

Supreme Judicial Court of Massachusetts, Bristol.

Jan. 15, 1931.

Exceptions from Superior Court, Bristol County; Franklin T. Hammond, Judge.

Action by Ellen V. Kenyon, administratrix, against Charles E. Hathaway. Verdict in favor of defendant, and plaintiff brings exceptions.

Exceptions sustained.

R. A. Bogle and H. S. R. Buffington, both of Fall River, for plaintiff.

H. F. Hathaway and E. A. Hathaway, both of Taunton, for defendant.

SANDERSON, J.

This is an action of tort brought by the plaintiff, as administratrix of her husband's estate, to recover for his death in an automobile accident on August 26, 1922. The plaintiff's intestate was driving a loaded truck from Providence toward Fall River. The defendant's loaded truck was being driven in the opposite direction by his grandson, who was admitted to be the agent of the defendant acting within the course of his employment. A collision between them occurred in Swansea in this Commonwealth at about 4:30 in the morning. There was no witness to the accident except the drivers of the respective trucks. The plaintiff discontinued as to the count for conscious suffering and the case was submitted to the jury on the count for negligently causing death. All the evidence bearing on the question of liability is not reported, but it is clear from the charge that the only question submitted to the jury on this issue related to the violation of G. L. c. 89, § 1, requiring persons travelling with vehicles when they meet on a way each seasonably to drive his vehicle to the right of the middle of the travelled part thereof so that the vehicles may pass without interference. The plaintiff's exceptions relate to the exclusion of evidence offered by her and to parts of the charge to the jury.

[1] Interrogatories filed by the plaintiff were answered by the defendant under oath. When he was testifying as a witness at the trial and being cross-examined by the plaintiff he stated in substance that he gained the information concerning the accident not from talking with his grandson but from conferring with others; that he did not talk with him before answering. He was the asked whether his grandson was with him when he answered the interrogatories and he said, ‘He was not.’ Upon objection this question and answer were excluded. The witness was then asked whether he was in his attorney's office when he answered the interrogatories, and upon objection the question was excluded and the trial judge inquired whether there were any further questions. Counsel for the plaintiff then asked to have his exception saved to the exclusion of the last two questions. If it be assumed that this exception was properly saved there was no error in excluding the questions. The interrogatories had not been offered in evidence when the questions were asked, and there is nothing in the state of the evidence at the time or in the provisions of G. L. c. 231, § 62, as to inquiries to be made by a party before answering interrogatories to make the testimony then material. The exercise by the trial judge of his discretion in limiting the scope of cross-examination on irrelevant matters presents no question of law. Prescott v. Ward, 10 Allen, 203, 209;Cobb, Bates & Yerxa Co. v. Hills, 208 Mass. 270, 272, 94 N. E. 265.

[3] The driver of the defendant's truck testified that the decedent was approaching him coming around a curve on the Witness's left side of the road; that the decedent turned to his left and then went out into the road and hit the left front wheel of the truck of the defendant which was and had been on the witness's right side of the center of the road; that the collision took from him the control of the truck he was driving and caused it to go twelve or fourteen feet to his left side of the road. He also stated in cross-examination that he had never said that the truck he was driving was pushed backwards by the collision. In rebuttal to meet this testimony the plaintiff offered the following interrogatory to, and the answer of, the defendant: ‘Please state how far said automobile moved after it struck the deceased, or the vehicle in which the deceased was riding, if the deceased was riding in a vehicle. A. Defendant's automobile did not strike the deceased. The defendant's automobile did not move ahead after the collision. Defendant's automobile driven backwards by impact seven or eight feet.’ The interrogatory was not offered by the plaintiff in her direct case. G. L. c. 231, § 89, provides that the answers of a party to interrogatories filed may be read by the other party as evidence at the trial, thus giving him the right to read them as a part of his direct case. The defendant had no personal knowledge of the accident. There was no testimony tending to prove that the driver had at any time stated in substance or effect that the vehicle he was driving was pushed back and no evidence to meet the defendant's testimony that the answers were made by him without conferring with the driver. The answer to the interrogatory was not competent evidence to rebut or contradict the testimony of the witness and there was no error of law in the ruling excluding it.

The evidence was uncontradicted that the operator of the defendant's truck had a Rhode Island license to operate motor vehicles but none in Massachusetts. The defendant's truck was registered in this Commonwealth only. The judge in his charge, having stated that the statute requires that persons must be licensed to drive automobiles in this Commonwealth and that the statute authorizing nonresidents to operate motor vehicles here did not apply because the truck was registered in this State, said that the failure to comply with the law is evidence of negligence, but that it is ‘not evidence of negligence if it has no logical connection with the accident.’ He then, subject to the exception of the plaintiff, charged in part as follows: ‘the only evidence of negligence is the evidence in regard to whether the law of the road was complied with or not,’ and there is ‘no logical connection between driving an automobile without a license and negligence in driving an automobile. * * * The fact that you have not got any license is a mere condition to any accident that you get into. It does not throw any light whatever on how you were running that automobile at the time of the accident. * * * It hasn't anything to do, in other words there is no causal connection in reason or common sense between the possessing a license and the manner in which an automobile is driven at the time of an accident. It is a mere condition and it cannot be considered a cause of an accident, or certainly not in this case and I am unable to see how it ever can. So that I instruct you that the fact that the defendant's car was being driven by a person who had a Rhode Island license and not a Massachusetts license, cannot be taken as any evidence of negligence causing this accident.’

It is assumed for the purpose of this decision that the statute of Rhode Island requiring operators of motor vehicles to have licenses has for its aim the protection of the public by confining the right to operate such vehicles in that State to persons shown to be qualified. Pub. Laws of R. I. 1916, c. 1354, § 7. See Bourne v. Whitman, 209 Mass. 155, 171, 95 N. E. 404,35 L. R. A. (N. S.) 701;Gordon v. Bedard, 265 Mass. 408, 412, 164 N. E. 374. Our court has held that previous experience of the operator of a street railway car is not material or competent to prove that he was negligent or failed to exercise reasonable care at the time of an accident in which he is involved. Lang v. Boston Elevated Railway, 211 Mass. 492, 493, 98 N. E. 580;Hunt v. Boston & Maine Railroad, 250 Mass. 434, 146 N. E. 30;Pendleton v. Boston Elevated Railway Co., 266 Mass. 214, 218, 165 N. E. 36. The general rule seems to be that evidence that a plaintiff or defendant is commonly a careful and skilful man is not competent to prove that he was not negligent at a particular time. Tenney v. Tuttle, 1 Allen, 185;McDonald v. Savoy, 110 Mass. 49. These cases involved no violation of a criminal statute, while G. L. c. 90, §§ 10, 12, enacted to secure fitness to operate and skill in the management of a motor vehicle, are penal statutes in the form of positive prohibitions. In a case where it appeared in evidence that the operator of a motor vehicle had no license at the time of the accident the court held that evidence that he never had one was incompetent on the issue of his due care. This issue can be ‘determined only by his conduct at the time when the accident occurred. If the jury found, upon...