Mielke v. Dobrydnio
| Decision Date | 26 February 1923 |
| Citation | 138 N.E. 561,244 Mass. 89 |
| Parties | MIELKE v. DOBRYDNIO (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Hampshire County; Henry A. King, Judge.
Actions by Gertrude Mielke against John Dobrydnio for personal injuries, and by Charles E. Mielke against John Dobrydnio for damages to property and consequential damages, both of which actions grew out of a collision between defendant's automobile and a horse and wagon driven by the female plaintiff. Verdicts for plaintiffs, and defendant brings exceptions. Exceptions overruled.
Lyman & Foley, of Easthampton, for plaintiffs.
R. P. & T. H. Stapleton, of Holyoke, for defendant.
These are two actions of tort-the first, to recover for personal injuries; the second, for injuries to the plaintiff's horse and damage to his wagon, and for consequential damages arising from injuries to his wife (the plaintiff in the first action), who will hereafter be referred to as the plaintiff.
The actions grow out of a collision between a horse and wagon driven by the plaintiff and an automobile operated by the defendant. The accident occurred on the evening of November 24, 1920, at a time when it was dark and was snowing. There was evidence that the plaintiff was driving along the highway on the right side of the road in the direction in which she was traveling; that a lighted lantern was attached to the left side of the seat; that the defendant, running his automobile in the opposite direction at a fast rate of speed, was approaching the team, and when about 300 yards away turned to his left and soon after ran into it. The defendant testified that he was operating his machine at a speed of about 10 miles an hour; that he saw the wagon about 25 feet away; that he sounded his horn and applied the brake; that the horse jumped across his path, and that in turning to the left to avoid an accident his car skidded; that there was no light on the wagon. There was ample evidence offered by the plaintiff to warrant a finding that she was in the exercise of due care and that the defendant was negligent. The exceptions relate to the admission of evidence, to the refusal of the judge to give certain instructions and to a portion of his charge.
The physician who attended the plaintiff on the night of the accident was called as a witness, and on cross-examination by the defendant's counsel said that ‘she was thrown on her back.’ He testified from notes on a slip of paper, which apparently he was using to refresh his recollection, and it could have been found that he was testifying from his recollection of what he saw that night upon his examination of the plaintiff, and that his statement was based upon his personal knowledge derived from her appearance and condition and was not merely hearsay. The answer was not objected to as unresponsive and therefore the exception to it cannot be sustained on that ground. Gagnon v. Sperry & Hutchinson Co., 206 Mass. 547, 557, 92 N. E. 761.
A witness was asked, ‘What did you notice about her [the plaintiff's] appearance as to pain?’ This question was admissible. A witness may state the result of his observation, although it involves in some measure his opinion or judgment. Commonwealth v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401;Partelow v. Newton & Boston Street Railway, 196 Mass. 24, 31, 81 N. E. 894;Jenkins v. Weston, 200 Mass. 488, 493, 86 N. E. 955. For the same reason the...
To continue reading
Request your trial
-
Roy v. Oregon Short Line Railroad Co.
...Southern R. Co. v. Molette, 207 Ala. 624, 93 So. 644; Chicago, R. I. & P. Ry. Co. v. Isom, 136 Ark. 624, 203 S.W. 271; Mielke v. Dobrydnio, 244 Mass. 89, 138 N.E. 561; San Angelo Water, Light & Power Co. v. Baugh, Civ. App.) 270 S.W. 1101; 3 Jones' Commentaries on Evidence, pp. 2226 and 223......
-
Kelly v. Boston & Maine R.R.
...ground that it was unresponsive. Lury v. New York, New Haven & Hartford Railroad Co., 205 Mass. 540, 547, 91 N.E. 1018;Mielke v. Dobrydnio, 244 Mass. 89, 91, 138 N.E. 561. 4. There was no error in the denial of the motion for a directed verdict. Not only the land but the actual tracks at th......
-
Com. v. Mezzanotti
...little weight as they saw fit. See Commonwealth v. Cappellano, 392 Mass. 676, 679, 467 N.E.2d 843 (1984). See also Mielke v. Dobrydnio, 244 Mass. 89, 92, 138 N.E. 561 (1923). The judge did not abuse his discretion in admitting the Lambs' 3. The defendant challenges the judge's instructions ......
-
Commonwealth v. Perry
...Commonwealth v. Sturtivant, 117 Mass. 122, 19 Am. Rep. 401;Jenkins v. Weston, 200 Mass. 488, 493, 86 N. E. 955;Mielke v. Dobrydnio, 244 Mass. 89, 91, 92, 138 N. E. 561. [10] The letters introduced in evidence to show why Crowley was not called by the district attorney were properly admitted......