Labrecque v. Donham

• Decision Date: 22 May 1920
• Citation: 236 Mass. 10,127 N.E. 537
• Parties: LABRECQUE v. DONHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 10

127 N.E. 537

LABRECQUE

v.DONHAM.

Supreme Judicial Court of Massachusetts, Middlesex.

May 22, 1920.

Exceptions from Superior Court, Middlesex County; Robert F. Raymond, Judge.

Action by Cordelia Labrecque, administratrix, against Wallace B. Donham, receiver of the Bay State Street Railway Company.Verdict for plaintiff, and defendant excepts.Exceptions sustained.Robert W. Nason and Thomas W. Proctor, both of Boston, and A. P. Sawyer, of Lowell, for plaintiff.

Trull, Wier & O'Donoghue, of Lowell, for defendant.

CROSBY, J.

This is an action to recover for the conscious suffering and death of Henry Labrecque, who died as the result of injuries received on October 24, 1918.He was employed by one Seymour who operated an automobile truck between Boston and Lowell.

In the morning of the day of the accident Seymour drove the truck from Lowell to Boston, having with him as helpers the plaintiff's intestate and one Swan; and on the return trip in the afternoon of the same day, an electric car of the Bay State Street Railway Company(at the time operated by the defendant as receiver) collided with the truck on a state highway in the town of Tewksbury and the plaintiff's intestate received the injuries which resulted in his death.Swan testified that they left Boston about 1 o'clock and that just before leaving he and Labrecque each had two drinks of whisky; Seymour testified that Swan and Labrecque had been drinking that day.On the way back Seymour and Swan rode on the seat and Labrecque sat on a tool box on the right hand running board.The traveled part of the highway at the point in question was macadamized, and to the left of it in traveling towards Lowell was the street railway track; just before the accident the truck, operated by Seymour, was being run on the macadam roadbed, and when it reached the bottom of the hill he--

‘heard a rumbling sound on his truck and turned his head to the left to see what it was.The truck turned to the left off the roadbed into the sand and the left front wheel went over the nearest rail of the street car track, and the engine of the auto truck stopped.Seymour looked up and saw that a street car was approaching from Lowell and the plaintiff's intestate who was riding on a tool box on the right-hand running board of the auto, stepped to the ground and went in front of the truck with his back to the car to crank the engine of the auto for the purpose of starting it.While doing this, the street car which was coming down hill in the opposite direction hit him, causing the injuries from which he died.’

[1] The question whether the motorman of the electric car was negligent was properly submitted to the jury, and we do not understand the defendant to contend to the contrary; the conduct of the plaintiff's intestate also was for the jury.

1.The defendant offered to show by a police officer that the latter was told by Swan (who testified for the plaintiff) that at the time of the accident they were ‘swapping wheels and stalled, run onto the track and stalled the engine’; this evidence was excluded and the defendant excepted.The record does not disclose that the evidence contained in the offer of proof had any tendency to contradict anything testified to by Swan; he testified that he did not remember what he said to the officer as to how the accident happened.This exception must be overruled.

2.The defendant offered to show that on the return trip the men on the seat of the truck stopped the engine and passed a flask between them which could have been found to contain intoxicating liquor.This evidence, with other evidence, was admissible as having a tendency to show that Seymour and Swan were intoxicated when the accident happened.If the jury so found, it could also have been found that it affected the credibility and weight to be given to their testimony.The exception to the exclusion of the evidence must to sustained.

3.One Redfern, a motorman, testified that on the day of the accident, and before it occurred, he was operating his car in the same direction as the truck was traveling and caught up with it just before he reached the Winchester line; the defendant offered to show by this witness for the purpose of proving that the men on the truck were under the influence of liquor that they--

‘were boisterous, noisy, that they drove their auto in front of the car and held it back several times, so that because of it the car lost 12 minutes in going from Medford to Woburn; that at times when the auto left the track to let the car go by one of the men, the plaintiff's intestate,-well, that is a matter of inference but one of the men thumbed his nose at the motorman and Ha!Ha!'d to him.’

This evidence was excluded.It should have been admitted, as it was competent to show that have been admitted, as it was competent to show that Seymour and Swan were under the influence of liquor and to contradict their testimony that they were sober at the time of the accident.

As we find no error in the exclusion of evidence to which the other exceptions were taken, they need not be considered in detail.

The remaining exceptions relate to the refusal of the court to give certain instructions to the jury, and to a part of the charge.

[5] 4.The defendant's eighth and ninth requests in substance should have been given.If the plaintiff's intestate was intoxicated at the time of the accident, this alone does not prevent her maintaining this action and the jury were so instructed; but if his intoxication contributed to the injury in any degree, she cannot recover.Holland v. West End Street Railway, 155 Mass. 387, 388, 29 N. E. 622;Black v. New York, New Haven & Hartford Railroad, 193...