Belleveau v. S. C. Lowe Supply Co. , 200 Mass. 237 ( 1908 )

Morton, J.

This is an action of tort to recover for injuries sustained by the plaintiff in consequence of being run over by an automobile owned and operated by the defendant. There was a verdict for the defendant, and the case is here on exceptions by the plaintiff to the exclusion of certain testimony that was offered by him. We think that there was error in the exclusion of the testimony and that the exceptions must be sustained.

The accident occurred on January 6, 1907, at about half past eight at night while the plaintiff, with two companions of about his own age, was walking toward Fall River on the State highway between Fall River and New Bedford. The night was very dark. The highway ran about east and west, and at the place where the accident happened was about twenty-five feet wide and was straight and level for about a mile in the direction from which the automobile was coming, which was from New Bedford. On the south side of the highway were double tracks for the street railway, next to the north rail of the north track was about five feet of level road, then fifteen feet of macadam, and then five feet more of level road. The plaintiff and his companions kept on the southern or left hand half of the highway. The plaintiff testified that “ as they walked along they were all three taking precautions against anything coming on them from behind; that they listened and in turn they looked back.” There was testimony tending to corroborate this. The plaintiff offered to show as bearing on the question of his due care that just before the accident one of his companions turned and looked back and said, “ There are two cars coming,” and then looked back a second time and said, “Let’s.hurry up, we can catch the second car at Reed’s Corner.” This evidence was excluded. We think that it should have been admitted for the purpose for which it was offered. It could not be ruled as matter of law that the plaintiff and his companions had not the right to rely upon each other. Whether in the exercise of due care they were justified in doing so was for the jury to say. If they were justified in relying upon each other, then what one said» to the others as he turned and looked back was clearly competent as tending to show in connection with the other facts in the case the circumstances under which the plaintiff acted and with reference to which his conduct was to be judged. See Sullivan v. Scripture, 3 Allen, 564.

The defendant called its chauffeur as a witness, and he testified that there were four lamps on the car and that they were all lighted. On cross-examination he testified that he understood that the law required him to have the number of the machine on the lights or on any two lights in front. He was then asked “Were there any numbers on either light?” and he answered “ No,” but upon the defendant’s request and against the plaintiff’s objection the judge struck out the answer and refused to allow the plaintiff to go into the matter and the plaintiff excepted. The plaintiff contends that there was evidence tending to show that but one lamp was lighted on the automobile, and that that was what led the plaintiff and his companions to think that the light was that of a street car; and he further contends that testimony that there were no numbers on the lamps would have furnished a reason for not lighting the lamps and would therefore have tended to affect the weight to be given to the chauffeur’s testimony, and to corroborate the testimony introduced by the plaintiff. He does not now contend that the violation of law contributed or could have been found to contribute to the accident, and there is nothing to show that he made any such contention at the trial. The judge well may have thought that the connection between the absence of numbers on the lamps and the accident was so remote as to render the evidence of no value and have excluded it on that ground. But because of the error in the exclusion of the testimony that was offered as to what was said by the plaintiff’s companion the entry must be

.Exceptions sustained.