Evidence, Remoteness, Competency. In an action for personal injuries sustained by the plaintiff's intestate by reason of one of the rungs of a ladder coming out or breaking at one end when the intestate was going up the ladder, evidence that ten months after the accident the intestate had "yellow-jaundice" and was taken to a hospital, where he died two days later, and that when he was taken to the hospital he said, in answer to a question from the doctor in attendance as to his habits, "that he drank daily twelve whiskeys and twelve beers and used one to two boxes of cigarettes a day," is not competent upon the issue of liability, there being no presumption that such excessive use of intoxicating liquor and tobacco existed as a habit at any certain previous point of time, and such excessive use ten months after the accident being incompetent to show that the intestate was drunk or under the influence of intoxicating liquor at the time of his injury.
In the same case there was evidence that when the plaintiff's intestate was injured by falling from the ladder he was taken to a hospital, that he left the hospital at the end of seven days, that a month later he told his brother that his back bothered him and that he was unable to work, that four months after his injury he told a former fellow workman that he was unable to do any work and had not done any since the time of the accident and that seven months after his injury he told another person that his back was not yet well. Held, that on the issue of damages the intestate's reply to the doctor in regard to the extent of his daily use of intoxicating liquor and tobacco was material and relevant as tending to show that the intestate's inability to labor was not attributable entirely to his fall from the ladder.
PIERCE, J.
The testimony that the plaintiff's intestate, ten months after his injury, in response to a question as to his habits said that he drank daily twelve whiskeys and twelve beers and used one to two boxes of cigarettes a day, properly was excluded on the issue of liability. It had no tendency to show that the intestate was drunk or under the influence of intoxicating liquor at the time of the accident. Carr v. West End Street Railway, 163 Mass. 360. Edwards v. Worcester, 172 Mass. 104. Hamsy v. Mudarri, 195 Mass. 418. There is no presumption that his daily abuse of the use of intoxicating liquor and tobacco existed as a habit at any certain previous point of time. Hingham v. South Scituate, 7 Gray, 229, 233. Chandler v. Jamaica Pond Aqueduct, 122 Mass. 305, 307.
Nevertheless, we are of opinion that the evidence upon the issue of damage was material and relevant. It tended to show that the inability to labor of the intestate was not attributable entirely to the accident but in part was due and chargeable to voluntary and reprehensible self-inflicted physical harm.
In the opinion of a majority of the court, the new trial should be confined to the question of damages. St. 1913, c. 716.
Exceptions sustained.