Nicholas v. Lewis Furniture Co.
| Decision Date | 29 November 1935 |
| Citation | 292 Mass. 500,198 N.E. 753 |
| Parties | NICHOLAS v. LEWIS FURNITURE CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Middlesex County.
Action of tort by John Nicholas against the Lewis Furniture Company. Verdicts for plaintiff for $35,416.50 and defendant brings exceptions.
Exceptions overruled.
J. P. Driscoll and M. Shapiro, both of Framingham for plaintiff.
A. E. Yont, of Boston, for defendant.
The plaintiff recovered a verdict for injuries received when hit by an automobile truck owned by the defendant and driven by its employee. The case comes to this court on two bills of exceptions, one presenting exceptions taken at the trial in the superior court, and the other, exceptions to rulings made by the trial judge at hearings on the defendant's motion for a new trial.
1. The plaintiff and his children were pushing a cart loaded with wood along a public street in Framingham on a winter's night. They were proceeding westerly close to the right hand side of the macadam surface of a street forty feet wide. The road was dry, free of ice and lighted by street lamps, in the vicinity of one of which the accident happened. The defendant's truck was travelling in the same direction with its headlights on. The driver testified that he saw nothing directly ahead of him in the street until just before the collision when he saw something, what it was he did not know, put on his brakes and turned to the left, but there was a collision. He also testified that his speed was about twenty-five miles an hour, that when about one hundred feet away from the locus of the accident his vision was blinded by the headlights of an automobile coming in the opposite direction and that when he turned suddenly to the left the truck skidded. On the facts as the jury were warranted in finding them a conclusion that the defendant was negligent was justified. Since the defendant does not here contend that on the evidence submitted to the jury a verdict for the plaintiff was unwarranted, a fuller summary of the evidence is not necessary.
The defendant excepted to the admission of, and later to the refusal by the court to strike out, an estimate, given during redirect examination by a witness called by the plaintiff, as to the speed of the defendant's truck prior to the collision. On direct examination the witness had testified that he was walking easterly on the street in question facing the place of the accident which was about three hundred feet away, with a view of the street ahead of him for five or six hundred feet or more, and saw the plaintiff's cart and the headlights of a vehicle approaching behind it which he could not say was the defendant's truck though the jury was warranted in finding that to be the fact. An estimate of its speed given by him on direct examination was by agreement of counsel struck out when, under a skilful cross-examination, he testified that he first saw the plaintiff's cart when it was five, six or ten feet from the point of collision, and that the time during which he had the headlights of the approaching vehicle under observation was the time taken for two snaps of one's fingers, a matter of half a second or a few feet. On redirect examination he testified without objection that he had said on direct examination that he had seen the headlights when five hundred feet away, and that the point of collision was about three hundred feet away from him and also testified that while the vehicle travelled the distance of two hundred feet he was watching it and had formed an opinion as to its speed. The defendant excepted to the admission of the witness's estimate that its speed was thirty to thirty-five miles an hour. On recross-examination he testified that he had not said in direct examination that the defendant's truck was five or six hundred feet away when he saw its headlights. The defendant excepted to the refusal of the judge to strike out the estimate of speed made by the witness on redirect examination.
There are in the testimony of the witness in his various examinations inconsistent statements as to the distance the defendant's truck travelled under his observation. We think it was for the jury to say whether in fact he did see the lights of the truck while it was going the distance of about two hundred feet and that it cannot be said as matter of law that the jury were obliged to find the distance to have been much less. Larson v. Boston Elevated Railway, 212 Mass. 262, 98 N.E. 1048; Coyle v. Worcester Consolidated Street Railway, 273 Mass. 475, 476, 477, 173 N.E. 586, and cases cited. Nor should it have been ruled as matter of law that the witness who had driven automobiles for nine years, if he had observed the approaching headlights of the defendant's truck while it traversed a distance of two hundred feet on a lighted street with which he was familiar, was unable to form an intelligent opinion as to speed which was sufficiently reliable to be of aid to the jury. Johnston v. Bay State Street Railway, 222 Mass. 583, 111 N.E. 391, L.R.A. 1918A, 650; Faulkner v. Eastern Massachusetts Street Railway, 277 Mass. 291, 178 N.E. 527.
There was evidence that as a result of his injuries the plaintiff had become mentally unsound. He was committed to the Westborough State Hospital within three weeks after the accident and was still there at the time of the trial. A doctor called as a witness by the defendant examined the plaintiff and testified that he was mentally normal and that he obtained a history of the plaintiff's condition from the hospital records, parts of which were read to him by the assistant superintendent of the hospital. The witness was asked on direct examination what the assistant superintendent said about the plaintiff. Upon objection by the plaintiff there was a conference between the attorneys and the judge at the bench and thereafter the defendant took an exception to the refusal of the judge to permit the witness to answer the question. The bill of exceptions states that ‘ there is no record of any formal offer of proof having been made.’
The general rule is that in this court reversible error cannot be predicated upon the refusal of the trial judge to permit a witness to answer a question put by the party calling him in the absence of an offer of proof as to what the answer of the witness would be, the reason being that such a record does not show that harm was done by the exclusion of the answer of the witness. Falk v. Falk, 279 Mass. 530, 532, 181 N.E. 715; Ryder v. Ellis, 241 Mass. 50, 58, 134 N.E 692; Carriere v. Merrick Lumber Co., 203 Mass. 322, 327, 89 N.E. 544; Warren v. Spencer Water Co., 143 Mass. 155, 164, 9 N.E. 527. The present substitute bill of exceptions recites that the original bill, drafted by counsel for the defendant at the trial and since deceased, contained the statement that at the trial the defendant offered to prove that the assistant superintendent of the hospital...
To continue reading
Request your trial