Sutherland v. Scardino

• Citation: 334 Mass. 178,134 N.E.2d 444
• Parties: Richard H. SUTHERLAND v. Mario SCARDINO. Richard H. SUTHERLAND v. Virgilio C. CENCI.
• Decision Date: 11 May 1956
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 444

134 N.E.2d 444

334 Mass. 178

Richard H. SUTHERLAND v. Mario SCARDINO.

Richard H. SUTHERLAND v. Virgilio C. CENCI.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Dec. 8, 1955.

Decided May 11, 1956.

Bertram A. Sugarman, Boston, for plaintiff.

Samuel P. Sears, Boston, for defendant Scardino.

Walter F. Henneberry, Newton Center, for defendant Cenci.

Before QUA, C. J., and WILKINS, SPALDING, WILLIAMS and WHITTEMORE, JJ.

WILLIAMS, Justice.

In these actions of tort the plaintiff seeks to recover for personal injuries received on July 25, 1952, on the Southern Artery in Quincy when struck by an automobile operated by one Richard W. Boyd. There was testimony that at about 12:30 A.M. on that day the plaintiff, the defendants Scardino and Cenci, Mrs. Scardino, and four or five others agreed to drive to a certain restaurant in Boston in two automobiles. The plaintiff, Mrs. Scardino, and two of the men rode with Scardino in his automobile. The others rode with Cenci. While proceeding northerly on the Southern Artery Cenci had trouble with his right front tire. He signaled to Scardino, who was behind, to stop, and drew up on the right side of the road parallel to the easterly curb. Scardino passed him, turned his automobile around, and parked it facing south in front of the Cenci automobile. He did this in order that his headlights, which were on low beam, might illuminate Cenci's right front tire which required changing. The automobiles were then 10 or 15 feet apart. Cenci's parking lights were lighted. The occupants of both automobiles alighted and Cenci, with the assistance of one of the men, proceeded to jack up his front wheel. Someone suggested that a spare tire be obtained from Cenci's trunk in the rear of his automobile, and the plaintiff offered to get it. He walked to the rear of the Cenci automobile and while removing the spare tire from the trunk was struck by an automobile coming from the south operated by Boyd. A verdict was ordered to be returned for each defendant. The cases are before us on the exceptions of the plaintiff to the derections of the verdicts and to a ruling of the judge on a matter of evidence.

In the plaintiff's substitute consolidated bill of exceptions it is stated that 'The plaintiff boarded the car of the defendant Scardino when it left for Boston as a gratuitous guest of the defendant Scardino. The occupants of both cars were on a joint journey of pleasure. At the time of the accident the plaintiff was assisting in the repair of the flat tire on the car of the defendant Cenci so that the Cenci car would be able to resume the originally planned trip of having all the occupants of both cars go into Boston on their original mission.'

The ruling to which the plaintiff excepted was made during the interrogation of Boyd, who seems to have been called as a witness by the plaintiff and under direct examination testified as follows. He was an electrical engineer and while driving north on the artery at from 30 to 35 miles per hour was blinded by a headlamp. The headlamp was straight ahead of him and, when he first saw it, was 20 to 25 feet away and appeared to be moving toward the center of the road, that is, from Boyd's right side of the road toward the center. He put his foot on the brake and the collision with the plaintiff and the Cenci automobile occurred. He did not observe any red lights on the rear of any automobile. On cross-examination by the attorney for Cenci during which he was examined as to a statement made by him to the registry of motor vehicles he testified that as a matter of fact he did not know anything about the accident proper until just an instant before it happened; that he did not know whether or not he was adjusting the rear view mirror; and that when he told the police that he was, he was trying to reconstruct it to the best of his ability. To a question 'If I were to ask you: 'What do you know about this accident?' you would have to say: 'I have absolutely no personal knowledge about any of the circumstances leading up to it. I would have to reconstruct it.' Is that what you would have to do?' The witness answered 'Yes, sir.' The judge then allowed a motion to strike out the witness' testimony and the plaintiff excepted. In answer to a subsequent inquiry by the judge as to the report he had made to the police Boyd testified that the report was a reconstruction of the accident; that he tried to recreate it; and that the report was only one of three opinions which he had.

He stated to the judge, at the conclusion of his testimony, that the only knowledge he had of the accident was that he was blinded by a lamp. There was no error in striking out his testimony as to what he believed must have occurred prior to the collision as it was based on facts which he learned of later and not on personal observation and recollection. His final...