Citation Numbers: 345 Mass. 180
Judges: Whittbmore
Filed Date: 12/3/1962
Status: Precedential
Modified Date: 6/25/2022
The first count in this action of tort is for injuries to Catherine T. Moynihan when the defendant on January 27, 1959, caused her automobile to collide with an automobile from which Mrs. Moynihan was alighting. The second count is a claim for the husband’s consequential damages. The jury found for the defendant. The plain
The judge, we think, was recalling to the jury that the defendant’s denial of contact between the cars had persisted notwithstanding the cross-examination with which Mr. Moran had assailed it. The mention of the plaintiffs ’ attorney imports a reference to his examination, rather than to the evidence which constituted the case for the plain-. tiffs. In later words, the judge told the jury that their “big job ... is to sift the evidence . . . make up your mind which . . . you will believe” and that “I cannot direct or suggest to you how you are going to find.” We rule that, in the words objected to, he did not do so. In those words, the judge, within permissible limits, stated and emphasized, not his opinion, but rather a significant circumstance of the trial. The other words of the charge do not change the meaning of what was said at this point.
Conceivably, in context the words objected to were subject to misconstruction. It would have been appropriate, by way of correction, for the judge to have emphasized that it was for the jury and not for the court to draw a conclusion on the weight of the testimony. Plaintiffs ’ counsel recognized this in malting his objection. He said: “I ask that the part of the [cjharge where it was stated that Mr. Moran had not successfully assailed the testimony of Mrs. Jacobs be corrected, and the jury instructed. It is for the jury, not for the court.” As noted, however, the judge had in the concluding part of the charge already restated the correct instruction. See Whitney v. Wellesley & Boston St. Ry. 197 Mass. 495. It would have been appropriate also to state that the particular words were not to be construed as the plaintiffs ’ attorney thought. But the circumstances did not make the omission error in law.
Exceptions overruled.
-An earlier part of the charge was as follows: “Now, this is a rather strange case, for . . . [the defendant] . . . absolutely denies the occurrence of any accident for which she is responsible. She denies coming in contact with the . . . [other] car. . . . Mrs. Moynihan in describing her injuries certainly has shown that she must have been in a very, very poor condition, she must have been quite a nervous woman, to emerge from this experience . . . [with] the complaints that she has made here: loss of memory . . . lack of sensation . . . not being able to do any work at all for months, and being laid up, as she complains that she was. Certainly in the accident that she described I don’t know of any blow that was struck or sustained which caused all these conditions. You will have to sift the evidence . . . and . . . determine for yourself whether ... in the accident that she had, or she claims she had, it was possible for her to sustain all these injuries, for up to today she is complaining of the residuals of that injury. . . . [Y]ou must consider whether ... it was possible to sustain injuries from the accident which she described . . . the injuries that she claims to have had. Now, she put on two doctors. You heard one . . . who had seen her before, in 1944, for a condition involving her stomach. And of course he showed you some pictures. The question is whether she had at the time of this accident any of the residuals of that condition ... or whether she was completely, entirely well. . . . And then whether ... it was possible from the injuries she sustained that she should go completely under and sustain such lasting hurts and injuries, not being able to do any work at all for months, not being able to go out on the street, and not being able to do many of the chores of her home responsibilities for a long time. I speak to you about these matters frankly, for although I am not taking any sides . . . the law . . . does not permit the Judge to inject himself ... I am not giving you my views ... I am absolutely neutral . . . whichever you find will be all right with me ... I am entirely neutral on that point, — but in discussing the facts I of course feel no restraint, and I will discuss them with you. ’ ’