Corin v. Gately

338 Mass. 110 (1958) 153 N.E.2d 752

ARCHIE B. CORIN
vs.
JOHN F. GATELY, Junior.

Supreme Judicial Court of Massachusetts, Suffolk.

October 9, 1958. November 17, 1958.

Present: WILKINS, C.J., RONAN, SPALDING, WHITTEMORE, & CUTTER, JJ.

Alfred A. Albert, for the plaintiff.

William F. Meara, Jr., for the defendant.

RONAN, J.

This is an action of tort brought to recover for injuries sustained by the plaintiff when his automobile was struck in the rear by the defendant's motor vehicle while the plaintiff was attempting to drive to his right after passing two automobiles which were double parked on his right. There was a verdict for the defendant.

The plaintiff's physician without timely objection testified on cross-examination that the plaintiff had a history of idiopathic epilepsy with convulsions, which illness began in 1940 and for which he was being treated by the daily administration of 400 milligrams of dilantin, a drug used to prevent epileptic seizures. There was evidence that the plaintiff had taken a dilantin tablet one half hour before the accident, and that he took another upon being admitted to a hospital following the accident in order to prevent an attack. There was no evidence, however, that the plaintiff was suffering from an attack at the time of the accident. There was evidence that the plaintiff had had no attacks for three or four years prior to the accident.

With respect to the evidence of the plaintiff's past history of epilepsy, the judge charged the jury as follows: "... while there was no direct evidence that Mr. Corin was suffering from epilepsy or that epilepsy had anything to do with this accident, the defendant, through his counsel, has brought out in evidence certain facts that he would like to have you consider, certain matters, in the hope that you might draw an inference that the plaintiff, Mr. Corin, was suffering from epilepsy and that that was the cause of the accident or a contributing cause rather than any negligence of the defendant. I mention that in passing because it has been argued and it has been in evidence, and it is for you to consider and it is there for whatever weight you may wish to give it, you being the sole judges of the facts." Counsel for the plaintiff objected and took exception to this portion of the charge.

The exception to the charge must be sustained for there was no direct evidence that the accident was caused by epilepsy and the evidence was insufficient upon which to base an inference that it was.

Exceptions sustained.