Kwindias v. Knoel

• Decision Date: 14 October 1927
• Citation: 261 Mass. 91,158 N.E. 335
• Parties: KWINDIAS v. KNOEL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 91

158 N.E. 335

KWINDIAS

v.KNOEL.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 14, 1927.

Exceptions from Superior Court, Worcester County; Frederic B. Greenhalge, Judge.

Action of tort by Julius Kwindias against Frank Knoel to recover for personal injuries in collision between plaintiff's motorcycle and defendant's automobile. Verdict for plaintiff, and defendant excepts. Exceptions sustained, and judgment entered for defendant.

Charles F. Boyle, of Worcester, for defendant.

CROSBY, J.

This action is brought to recover for personal injuries received by the plaintiff, and for damage to his motorcycle, alleged to have been caused by negligence of the defendant in operating an automobile which collided with the motorcycle.

The plaintiff testified that, while operating his motorcycle on the extreme right side of Belmont street, a public way in Worcester, it was struck from behind, he and his machine were dragged 30 or 40 yards, and he was rendered unconscious; that he did not observe any automobile behind or ahead of him; that the only vehicle in sight was on the top of a hill in front of him and about half a mile away; that he did not hear any horn sounded; and that he did not know at the time of the accident who was the driver of the automobile, but he was told it was one Kenton. He further testified that about a year after the accident he had a conversation with the defendant, who came to the plaintiff's place of employment; that, after talking about not going to court, the defendant said that he was the owner of the car, and he offered $400 or $500 to settle the case out of court. We need not consider whether this statement was an offer of compromise, or could be construed as an admission of liability, as that question is not raised. The plaintiff further testified that the defendant said:

‘I own the car, but, he says, ‘I give it to the other fellow to drive this machine to take his wife and another lady to a party here in Worcester.’'

[1] Upon the completion of his cross-examination, the plaintiff rested. Thereupon

the defendant presented a motion for a directed verdict. During the argument upon the motion, it appeared that:

‘There was or might be a misunderstanding as to the testimony of the plaintiff in respect of his alleged conversation with the defendant in which the latter was alleged to have said; ‘I give it to the other fellow to drive this machine to take his wife and another lady to a party here in Worcester.’'

It was contended by the plaintiff that the statement referred to the defendant's wife. As the defendant did not rest his case when the motion was presented, the judge properly declined to consider it, and allowed the plaintiff to offer further testimony for the purpose of determining whether the statement of the defendant referred to his wife or the wife of Kenton, who drove the car. There was no error in allowing the plaintiff to present further evidence upon this question.

[2] In further examination of the plaintiff he was asked:

‘Now, just repeat, tell us again the conversation that you had with Mr. Knoel. Tell us again.'

His answer was that the defendant said:

‘It let her have it for a fellow drive the car for his relations, and he says, ‘My wife was in it and another lady in it,’ and, he says, ‘to take those ladies to a party.’'

At...