Mahoney v. Gooch

• Decision Date: 03 December 1923
• Citation: 141 N.E. 605,246 Mass. 567
• Parties: MAHONEY v. GOOCH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

246 Mass. 567

141 N.E. 605

MAHONEY

v.GOOCH.

Supreme Judicial Court of Massachusetts, Bristol.

Dec. 3, 1923.

Exceptions from Superior Court, Bristol County; Nelson P. Brown, Judge.

Action of tort by John J. Mahoney, administrator of the estate of Elizabeth Mahoney, deceased, against Fredrick H. Gooch, to recover for the death of the decedent through a collision with an automobile owned by the defendant and operated by a chauffeur in his employ. Verdict for defendant, and plaintiff brings exceptions. Exceptions sustained.

L. Swig, of Taunton, for plaintiff.

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

JENNEY, J.

In the trial of an action brought by an administrator to enforce liability because of death, exceptions were taken to the exclusion of evidence and to the refusal of an instruction.

Elizabeth Mahoney, deceased, hereinafter referred to as the plaintiff, on December 8, 1919, shortly before 5 p. m. was injured by an automobile owned by the defendant and then operated in his service. The accident happened in Taunton on Broadway near the corner of Paull street, and almost in front of a house designated as the Berthiaume residence. On contradictory evidence, there was an issue of fact whether the plaintiff ran into the side of the automobile in an endeavor to cross the street, or was hit by it. The speed of the automobile was pertinent to the issue of liability and was in controversy. There was evidence that it was ‘a cold, rainy night, greasy and nasty, that the road was slippery,’ and ‘that there was a kind of fog.’

[1] The plaintiff called a witness by the name of Robinson, who was 14 years old when the accident happened, and who testified that he was then on Paull street near its intersection with Broadway, that his attention was called to the defendant's automobile by seeing its lights when it was about 160 feet from the point of collision, and that he had it in view until he saw the plaintiff and the car come in contact. He further testified that he had driven automobiles for about 5,000 miles. From other parts of the record, it could have been found that he referred to his personal experience in driving although his age forbade the holding of an operator's license. St. 1909, c. 534, § 8. In direct examination he was asked to state the speed of the automobile while he saw it. The question was excluded subject to exception. Thereafter an offer of proof was made in effect that the witness would testify that the rate of speed when he saw the automobile was 20 miles per hour. After this he testified that he observed its speed; he was then asked, ‘What speed was it [the defendant's automobile] going?’ This question was excluded subject to the plaintiff's exception. The record cannot be fairly construed as limiting the proffered testimony to the expression by this youth of an expert opinion concerning speed. Actual experience may well add weight to such testimony, but it does not warrant its rejection, at least where the evidence is not offered as that of an expert. There was error in the exclusion of the offer of proof. Johnston v. Bay State Street Railway, 222 Mass. 583, 111 N. E. 391, L. R. A. 1918A, 650;Creedon v. Galvin, 226 Mass. 140, 115 N. E. 307.

[2] The exclusion of the testimony of Mrs. Thigpen about the rate of speed was within the discretion of the judge. On the record she could not as a matter of right be interrogated on this subject during her redirect examination. No exception was taken to the exclusion on direct examination of her observation relating thereto, and it does not appear that the defendant had inquired of this witness concerning it. Dutton v. Woodman, 9 Cush. 255,57 Am. Dec. 46;Kendall v. Weaver, 1 Allen, 277.

[3] In redirect examination this witness was asked:

‘When you said in your statement to Mr. Hathaway [the defendant's counsel] that this automobile was going slowly, what did you mean?’

The exception to the exclusion of this question may be disposed of on the ground that the record does not show that the witness made such a statement. Clearly a party has a right in redirect to ask an explanation of testimony given only in cross examination or call attention of the witness thereto as a basis of further evidence relating to the same subject, and may by proper inquiry afford an opportunity to explain, correct, or modify such previous statements. Brown v. Brown, 208 Mass. 290, 94 N. E. 465;Bay State Paper Co. v. Duggan, 214 Mass. 166, 100 N. E. 1083.

[4][5] A witness called by the plaintiff as an expert, whose qualifications were not disputed, was asked for his opinion of the speed of the vehicle,...