Negligence, Motor Vehicle. Damages, In tort. Husband and Wife. Evidence, Opinion: expert; Competency. Practice, Civil, Exceptions.
In an action of tort by a married woman, living with her husband, against a third party for personal injuries, the plaintiff can recover for impairment of her capacity to labor without proof that she actually was working or was in the receipt of wages or compensation at the time of and before the injury.
A bill of exceptions, filed by the defendant in an action of tort by a woman for personal injuries received when she was run into by an automobile owned and driven by the defendant, stated that there "was evidence that the female plaintiff was in the exercise of due care; and that she was injured at the time and place above mentioned by an automobile owned by the defendant and operated by him in a manner which the jury might find to have been negligent." It appeared that a witness for the plaintiff, who had testified that he saw the plaintiff going across the street, that he did not see the collision but "heard the thud of it," was asked, "Did you hear any horn blown before this accident?" and answered, "No." The question and answer were allowed by the trial judge to stand subject to an exception by the defendant, the judge remarking that the evidence was "competent but don't prove anything," and instructing the jury, "simply to say you didn't hear anything is no evidence that the horn wasn't blown unless something else appears." Held, that, on the record, in view of the statement by the trial judge, no error harmful to the defendant was shown and the exception must be overuled.
At the trial of the action above described, a witness for the plaintiff, fifty-seven years of age, who had been in the real estate business for many years in an office near the scene of the accident and who did not see the automobile of the defendant "until just as it struck the female plaintiff," was permitted to testify as to the speed of the automobile, subject to an exception by the defendant based upon an objection that "unless this man shows he knows something about speed I don't think his estimate is competent," to which the trial judge replied, "I guess any man fifty-seven years of age has some judgment as to speed." Held, that, although the admission of the testimony was erroneous because the witness did not see the automobile before it struck the plaintiff, the exception must be overruled under G.L.c. 231, § 132, because of a statement in the bill of exceptions that the plaintiff was injured "by an automobile owned by the defendant and operated by him in a manner which the jury might find to have been negligent."
Testimony of a husband, at the trial of an action by his wife for personal injuries, that at the time of the trial his wife did not walk nearly as well as before the accident, is not incompetent as an expression of a mere opinion, but is admissible as stating a fact of common observation.
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.