Koch v. Lynch , 1924 Mass. LEXIS 794 ( 1924 )

Rugg, C.J.

These are actions of tort to recover compensation arising from the striking of the female plaintiff by an automobile owned and operated by the defendant. She seeks compensation for personal injuries. Her husband seeks compensation for expenses incurred in treatment of her injuries and other consequential damages. The exceptions state that there was evidence of due care on the part of the female plaintiff.

1. The married woman plaintiff could recover for impairment of her capacity to labor without proof that she actually was working or in the receipt of wages or compensation at the time of and before the injury. Harmon v. Old Colony Railroad, 165 Mass. 100. Millmore v. Boston Elevated Railway, 198 Mass. 370.

2. There was no harmful error in the admission of the testimony of the witness Kline that he did not hear any horn blown coupled with the statement of the trial judge that it did not prove anything. Merely negative testimony of that nature without circumstances tending to give it affirmative force is of no value. Menard v. Boston & Maine Railroad, 150 Mass. 386. Slattery v. New York, New Haven & Hartford Railroad, 203 Mass. 453. Gibb v. Hardwick, 241 Mass. 546, 549.

3. The witness Parsons ought not to have been permitted to give his opinion as to the speed of the automobile because he did not see it “ until just as it struck the female plaintiff.” He could have had no intelligent thought about the speed, even though fifty-seven years of age. But since the exceptions state that there was evidence from which the jury might have found that the automobile was operated by the defendant in a negligent manner, we are of opinion upon the whole record that the substantial rights of the defendant were not injuriously affected. G. L. c. 231, § 132. Noyes v. Noyes, 224 Mass. 125, 131.

4. The testimony of the husband that his .wife did not walk nearly as well now as before the accident was competent. It was a fact of common observation, even though involving to some extent a conclusion and opinion. O’Neil v. Hanscom, 175 Mass. 313. Gorham, v. Moor, 197 Mass. 522, 524. Parker v. Boston & Hingham Steamboat Co. 109 Mass. 449.

Exceptions overruled.