McGrath v. Fash

• Decision Date: 05 March 1923
• Citation: 139 N.E. 303,244 Mass. 327
• Parties: McGRATH v. FASH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

244 Mass. 327

139 N.E. 303

McGRATH

v.FASH.

Supreme Judicial Court of Massachusetts, Suffolk.

March 5, 1923.

Exceptions from Superior Court, Suffolk County; Christopher T. Callahan, Judge.

Action of tort by Margaret McGrath against Reuben A. Fash to recover for personal injuries sustained when defendant's truck tipped over on plaintiff. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

Defendant excepted to the admission of an X-ray plate, testimony of a witness that the truck just before the accident appeared to be out of the driver's control, and testimony that an expert who testified for defendant said while examining plaintiff that it was the worst accident case he had handled in 10 years. Defendant also excepted to the denial of his motion for a directed verdict.

Peter J. Donaghue, John B. Welch, and Harold R. Donaghue, all of Boston, for plaintiff.

William Flaherty, George C. Dickson, and Roger Clapp, all of Boston, for defendant.

CROSBY, J.

This is an action of tort to recover for personal injuries received by the plaintiff as the result of being run over by an automobile truck, owned by the defendant and operated by his servant. The case is before us on exceptions to the admission of certain evidence offered by the plaintiff. A physician called by her, who was a specialist in the use of the X-ray, testified respecting certain X-ray pictures purporting to be of the plaintiff's pelvic region (where the principal injury claimed by her existed), which were explained by the witness in response to questions by counsel for the plaintiff. The witness testified that the X-ray plates showed an abnormal condition of the pelvis, particularly with reference to the relation of the bones, some of which were alleged to have been fractured. The witness produced another X-ray plate, which he testified showed the pelvic bones of a normal person; this plate was admitted in evidence subject to the defendant's exception.

It is settled that an X-ray plate showing the physical condition of a plaintiff in an action for personal injuries is admissible, DeForge v. New York, New Haven & Hartford Railroad, 178 Mass. 59, 59 N. E. 669,86 Am. St. Rep. 464; and we see no valid reason why a plate of another person properly verified by proof which showed the pelvis in its normal condition, was not competent to assist the jury in understanding the nature and extent of the plaintiff's injury, in the same way that a skeleton is often exhibited in similar cases. Whether the plate was sufficiently verified was a preliminary question of fact to be decided by the trial judge and was not subject to exception. Blair v. Pelham, 118 Mass. 420. As the plate in question would have been of assistance to the jury in understanding the case, we are of opinion that it was admissible in the discretion of the court. Commonwealth v. Fielding, 184 Mass. 484, 69 N. E. 216;Commonwealth v. Tucker, 189 Mass. 457, 477, 76 N. E. 127,17 L. R. A. (N. S.) 1056;McKarren v. Boston & Northern Street Railway, 194 Mass. 179, 80 N. E. 477,10 Ann. Cas. 961;Everson v. Casualty Company of America, 208 Mass. 214, 219, 220, 94 N. E. 459.

A witness to the accident, one Kiley, testified that he was standing in his doorway ‘and all of a sudden this truck came around the corner on two wheels, and zigzagging across the street and appeared to be out of the control of the driver.’ The defendant requested the court to order the statement ‘and appeared to be out of the control of the driver’ stricken from the record, which request was denied and the defendant excepted. The exception to the...