Morrissey v. Connecticut Valley Street Railway Co. , 233 Mass. 554 ( 1919 )

Rugg, C. J.

This is an action of tort wherein the plaintiff seeks to recover damages sustained by him in person and property arising from a collision between an express car operated by the defendant upon its track and an automobile owned and operated by the plaintiff. The verdict was for the defendant and the case is here on the plaintiff’s exceptions.

The plaintiff’s requests for instructions were denied rightly. The eighth and ninth in substance required a ruling that the plaintiff was in the exercise of due care and that the defendant was negligent. These were both controverted issues, as to which there was conflicting evidence. There was a considerable body of testimony touching the conduct of the plaintiff and of the motorman. in charge of the defendant’s car immediately before and at the time of the collision. The jury may have disbelieved all that which tended to support the contentions of the plaintiff and credited only that which supported those of the defendant. Commonwealth v. Russ, 232 Mass. 58, 70. The case falls within the principle that it cannot usually be ruled as matter of law that a burden of proof has been sustained. McDonough v. Metropolitan Life Ins. Co. 228 Mass. 450, 452, 453. Duggan v. Bay State Street Railway, 230 Mass. 370.

The subjects referred to in the first, second, third, fourth and fifth requests were adequately dealt with in the charge.

The sixth and seventh requests referred to specific facts which the judge was not required to single out for special treatment. Ayers v. Ratshesky, 213 Mass. 589, 593. The charge was ample and fair and not open in these respects to just criticism. ‘ The several questions allowed to be put respecting the plaintiff’s habits in the excessive use of intoxicating liquor were carefully confined by the judge to the issue of damages, in connection with which the testimony was relevant and admissible. Ceresola v. Joseph F. Paul Co. 224 Mass. 395.

Evidence was competent tending to show that the injuries which, according to the claims of the plaintiff, resulted from the collision in question, were in truth caused by other and previous accidents sustained by him. As bearing upon this point, testimony as to other injuries received by the plaintiff was relevant. It is too plain for discussion that there is nothing inconsistent with this in decisions like Wiemert v. Boston Elevated Railway, 216 Mass. 598, and Coleman v. New York, New Haven, & Hartford Railroad, 106 Mass. 160.

The admission of the testimony of the motorman as to the distance at which his car could have been heard on the night in question, cannot be pronounced harmfully erroneous. Ross v. John Hancock Mutual Life Ins. Co. 222 Mass. 560, 562. Harrington v. Boston Elevated Railway, 229 Mass. 421, 427. The exclusion of somewhat similar evidence has been held not ground for sustaining exceptions in Commonwealth v. Cooley, 6 Gray, 350, and Welch v. New York, New Haven, & Hartford Railroad, 176 Mass. 393. Ordinarily it is better practice to develop the pertinent facts as to distance, intervening obstacles, nature of surrounding objects, and leave the inference to be drawn from the collective circumstances to the jury. But where much depends upon conditions more or less difficult to reproduce accurately by words, the conclusion of the witness, although involving something of opinion, is not necessarily incompetent. Commonwealth v. Sturtivant, 117 Mass. 122, 133. Duddy’s Case, 219 Mass. 548. Partridge v. Middlesex & Boston Street Railway, 221 Mass. 273. Eldridge v. Barton, 232 Mass. 183.

The admission of the photographs in evidence cannot be pronounced erroneous. Such a matter rests largely in the discretion of the presiding judge. The fact that the jury later took a view of the scene shown by the photograph did not render it incompetent. Field v. Gowdy, 199 Mass. 568. Halloran v. New York, New Haven, & Hartford Railroad, 211 Mass. 132, 133. Randall v. Peerless Motor Car Co. 212 Mass. 352, 385.

There are no other exceptions which require discussion. The record has been examined carefully and no error is disclosed.

Exceptions overruled.