Luiz v. Falvey

• Decision Date: 18 October 1917
• Citation: 228 Mass. 253
• Parties: JOSE LUIZ v. THOMAS FALVEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 253

JOSE LUIZ v. THOMAS FALVEY.

Supreme Judicial Court of Massachusetts, Hampden.

October 18, 1917

September 24, 1917.

Present: RUGG, C J., LORING, BRALEY, DE COURCY, & PIERCE, JJ.

Evidence Competency, Remoteness, Motor Vehicle. Practice, Civil Exceptions, Discretionary power of presiding judge. Witness Questions to show character.

The fact that a party to an action did or did not do a certain act cannot be proved by evidence that at other times it had been his custom to do or not to do this act.

In an action for personal injuries caused by the collision of a bicycle which the plaintiff was riding with a motor truck operated by the defendant, the plaintiff testified that he was on the right hand side of the road and that the defendant swerved with his motor truck to the left in order to turn a corner to the right and thus ran into him, while the defendant testified that he was driving on the right hand side of the road, not intending to turn the corner, and that the plaintiff's bicycle was wobbling from one side of the road to the other and ran into the truck. A witness for the plaintiff was allowed, without objection from the defendant, to testify that he had seen the defendant's truck go up this same road at other times. On cross-examination the defendant, subject to the plaintiff's exception, was allowed to ask the witness "What kind of a turn" the defendant's truck "customarily" made in going round the corner in question, and the witness answered that the truck turned close to the corner when he had seen it. The defendant contended, that, the plaintiff having asked the witness on his direct examination as to the defendant's truck having been driven up this road at other times, the presiding judge in his discretion might allow the defendant to introduce further evidence on this immaterial issue, but it was held that the question in regard to the manner of turning the corner was not opened by the plaintiff, so that the rule as to the discretionary power to allow an immaterial issue to be met after being opened did not apply.

In the same case it was held that the plaintiff was harmed by the admission of the incompetent evidence in regard to the defendant's customary way of turning the corner, because, if the jury had believed the plaintiff's testimony that the defendant swerved to the left, they could find that the defendant was violating St. 1910, c. 605, Section 5, which requires that a motor vehicle "approaching a crossing of ways" shall "keep to the right of the intersection of the centres of both ways, when turning to the right."

In the same case it appeared that two of the plaintiff's own witnesses had testified that after the accident the defendant's truck was on the right hand side of the road about fifty feet before reaching the corner in question, and the defendant contended that in the light of this evidence the admission of the incompetent evidence as to the defendant's customary way of turning the corner could not have harmed the plaintiff, but it was held that this testimony of the plaintiff's two witnesses was in conflict with the testimony of the plaintiff himself and that the jury were at liberty to believe the plaintiff.

At the trial of an action of tort for personal injuries, where the plaintiff and the defendant both have testified as witnesses, it is within the discretionary power of the presiding judge to allow the plaintiff and the defendant each to be asked how many children and how much of a family he has in order to enable the jury to learn in a general way "what sort of a man is on the witness stand."

TORT for personal injuries sustained on June 5, 1915, when the plaintiff was riding a bicycle on the road from South Hadley Centre to South Hadley Falls in the town of South Hadley and was struck by a motor truck driven by the defendant. Writ dated August 12, 1915. In the Superior Court the case was tried before Aiken, C. J.

The material evidence is described in the opinion. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions relating to the admission of evidence as stated in the opinion.

The case was submitted on briefs.

R. P. Stapleton, F.

J. McKay & E.

J. Stapleton, for the plaintiff.

W. G. McKechnie, for the defendant.

LORING, J. The plaintiff's story in this case was that while riding south on his bicycle on Hadley Road he was run into by a motor truck owned and operated by the defendant going north on the same road. He testified that, when he reached a point about seventy feet south of Granby Road (which leads out of the Hadley Road on the east) and while he was riding on the right hand side of the road, the defendant swerved out to his left in order to make the turn into Granby Road and ran into...