Tripp v. Allen , 226 Mass. 189 ( 1917 )

Loring, J.

This is an action to recover damages for being run down by a motor car of the defendant. The car was being operated by the defendant at the time of the accident. In his charge the judge read to the jury the following clause of St. 1909, c. 534, § 22: “Whoever upon any way operates an automobile or motor cycle recklessly or while under the influence of intoxicating liquor ... shall be punished by a fine” or imprisonment. He then told the jury that if the defendant was under the influence of liquor at the time of the accident he was violating a penal law and that the violation of a penal law which contributed to the injury is of itself evidence of negligence. Upon the counsel for the defendant taking an exception to this part of the charge, the judge asked him what he wanted him to say to the jury. To this the defendant’s counsel answered that he thought the jury ought to be told that there was no evidence that the defendant was under the influence of liquor. To this the judge replied that there was evidence that he was under the influence of liquor and that on the evidence the jury could find that this had contributed to the accident and thereupon the defendant’s counsel said that he “ought to take an exception to that part of the charge now.”

In his argument before this court the defendant’s counsel has not undertaken to support this exception on the ground that there was no evidence that the defendant was under the influence of liquor. The sole contention which he now makes is that by reading the penal statute to the jury he thrust into the case a fact not affecting the merits of the issue which the jury were to decide and one that was likely to appeal to the sympathy of the jurors and to distract their attention from the consideration of the true merits of the issue. The defendant relies upon Allen v. Kidd, 197 Mass. 256, and similar cases.

But that is not open to the defendant under the exception which he took. When he excepted generally to the part of the charge in question he was asked what his objection to it was. In answer to that question he stated that his objection was that there was no evidence that the defendant was under the influence of liquor. The only objection and exception to the charge was on the ground that there was no evidence warranting a finding that the defendant was under the influence of liquor. We do not intimate that the objection argued was well taken.

We are of opinion that the evidence did warrant a finding that the defendant was under the influence of liquor and that that contributed to the accident complained of. We do not go into this matter more fully because it has not been argued by the defendant.

Exceptions overruled.