Washburn v. R.F. Owens Co.

• Decision Date: 02 March 1927
• Citation: 155 N.E. 432,258 Mass. 446
• Parties: WASHBURN v. R. F. OWENS CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

258 Mass. 446

155 N.E. 432

WASHBURN

v.R. F. OWENS CO.

Supreme Judicial Court of Massachusetts, Plymouth.

March 2, 1927.

Exceptions from Superior Court, Plymouth County; Charles H. Donahue, Judge.

Action by George S. Washburn against the R. F. Owens Company to recover for personal injuries and damages alleged to have been caused by a rear-end collision of defendant's truck with plaintiff's wagon.On defendant's exceptions after verdict for plaintiff.Exceptions overruled.

C. G. Willard, of Brockton, for plaintiff.

A. E. Yont, of Boston, for defendant.

RUGG, C. J.

[1] This action of tort to recover compensation for personal injuries and property damages alleged to have been received through the negligence of an agent of the defendant was before us in 252 Mass. 47, 147 N. E. 564, where a verdict for the plaintiff was set aside.A second trial has resulted in a verdict for the plaintiff, and the case is here now on the single question whether the jury were justified as matter of law in finding that the injuries and damages were caused by the defendant's agent.There are no exceptions to the charge, and it must be presumed that full and accurate instructions were given to the jury.

[2] The evidence on this point when the case was here before did not differ substantially from that shown on the present record.It there was held that there was evidence for the consideration of the jury on the question of the causal connection of the negligence of the defendant's agent with the damage sustained by the plaintiff.We remain content with the earlier decision on that point.There was evidence tending to show negligence of the defendant and his agent apart from the mere fact of a rearend collision; there was no mirror or reflector on his truck as required (G. L. c. 90, § 7, last sentence), violation of which is punishable criminally under G. L. c. 90, § 9(Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 496, 497, 95 N. E. 876, Ann. Cas. 1912B, 797), and the manner of the attempt to pass the plaintiff's vehicle, and all the circumstances, might have been found to constitute negligence of the defendant's agent.

[3][4]The plaintiff introduced in evidence the defendant's answers to his interrogatories, which gave the defendant's version of the way the accident happened, to the effect that another automobile coming from behind struck the left front wheel of the defendant's truck, making it to collide with the vehicle of the plaintiff.There was testimony from the plaintiff tending to contradict these answers in that he saw no second automobile at the time of the accident.While his opportunity for observation was a factor to be considered in weighing his testimony, it cannot be said that these answers of the defendant to the interrogatories were uncontradicted.The law on this point is stated in Boudreau v. Johnson, 241 Mass. 12, 15, 16, 134 N. E. 359, 361, in these words:

‘These answers to the interrogatories were offered by the plaintiff and were in no way contradicted by him; and in the absence of any contradiction he is bound by them.As was said by Mr. Justice Loring in Minihan v. Boston Elevated Railway, 197 Mass. 367, at page 373[83 N. E. 871, 873]: ‘Where a plaintiff puts in the defendant's answer to interrogatories he does not thereby bind himself to the truth of the facts therein stated.He could contradict the facts there stated by evidence.But until contradicted by evidence, the truth of the facts stated stands as against the plaintiff who puts in the defendant's answers.’'

In Woodman v. Powers, 242 Mass. 219, at page 223, 136 N. E. 352, 353, it was said with respect to answers to...