Newman v. Levinson

• Decision Date: 28 February 1929
• Citation: 266 Mass. 264,165 N.E. 122
• Parties: NEWMAN v. LEVINSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 264

165 N.E. 122

NEWMAN

v.LEVINSON.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1929.

Exceptions from Superior Court, Suffolk County; W. H. Whiting, Judge.

Action by Carl Newman against Louis H. Levinson. Defendant's motion for a directed verdict was refused, and defendant excepts. Exceptions overruled.

W. B. Keenan and J. A. Treanor, Jr., both of Boston, for plaintiff.

J. J. Gaffney, of Boston, for defendant.

RUGG, C. J.

The plaintiff seeks in this action of tort to recover compensation for injuries sustained by him in slipping upon ice alleged to have been formed on a public way through the negligence of the defendant. The single exception is to the refusal to grant a motion for a directed verdict in favor of the defendant. The defendant admits that there was evidence on which the jury might find negligence on the part of the defendant and due care on the part of the plaintiff. The contention of the defendant, as stated in his brief, is ‘that the evidence of the plaintiff proves conclusively that the plaintiff did not break his arm, as he alleged, at the time of the accident.’ Assuming in favor of the defendant, but without so deciding, that if this were so the motion for a directed verdict ought to have been granted, his contention cannot be supported. The plaintiff testified that he slipped on the ice, that as he got up he said to his companion, ‘I think I have broken my arm,’ that he went directly to the Massachusetts General Hospital, where an X-ray was taken and his arm put in a splint; that he returned for treatment several times, that his arm was in a sling for four months and that he had never to his knowledge hurt his arm before that time. The plaintiff introduced the record of the emergency ward of the hospital as to his treatment. Therein the place of his injury was stated to be a street different from that named in the testimony of the plaintiff, the diagnosis was fracture of ‘right olecronon’ and the X-ray showed that the appearance ‘is that of a fracture of the olecronon of considerable duration without bony union and probably old fracture also of the internal condyle.’ Later he was treated in the out-patient department of the hospital, where the record introduced by the plaintiff stated: ‘X-ray shows an old fracture transverse of the olecronon process of ulnar Rt. * * * Old fracture non-union.’ A physician engaged in the special practice of orthopedic and fracture surgery and experienced in reading X-ray plates examined the plaintiff just before the trial and inspected the X-ray plates taken at the hospital. He testified as to finding injury to the arm of the plaintiff and that the fracture was of recent occurrence from the appearance of the X-ray plate. He described the differences in its appearance from what it would have been if the fracture were old. We think that his testimony was not shaken...