EMMA C. NASH vs. GEORGE J. HEALD.

DONAHUE, J. The plaintiff, a woman eighty-two years of age, was injured in the collision of an automobile in which she was riding on the invitation of its owner, a friend named Hills, and an automobile owned and operated by the defendant. This action, which was brought to recover damages for her injuries, was tried in a District Court. The judge found for the plaintiff and reported to the Appellate Division various rulings made by him and an order was there entered dismissing the report.

The judge found, and there was evidence recited in his report to warrant the finding, the following material facts relating to the collision: It occurred at about nine o'clock in the evening of July 1, 1936, on the northerly side of Eastern Avenue in the town of Essex. The street runs in a general east and west direction. The automobile in which the plaintiff was riding, hereinafter referred to as the Hills automobile, was being operated for its owner by one Bennett, in an easterly direction on Eastern Avenue. As the Hills automobile approached Southern Avenue, which entered Eastern Avenue from the south, it was proceeding at the rate of speed of twenty miles an hour. When the Hills automobile was at the intersection Bennett saw an automobile "coming fast out of Southern Avenue." He instantly "swerved" the Hills automobile to the left hand or northerly side of Eastern Avenue, at the same time increasing its speed to about twenty-five miles an hour, "and by so doing, he passed in front of the other car, barely escaping a collision with it." The left front wheel of the Hills automobile struck the northern curb on Eastern Avenue and the automobile came to a stop. Bennett was attempting to "straighten out his car to return to the right hand [the south] side of the street" and the automobile was again in motion, when he saw the defendant's

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automobile twenty-five or thirty feet away coming around a curve toward him. The right front end of the defendant's automobile struck the right front end of the Hills automobile before Bennett could move it away from the curb.

The defendant testified that as he approached the place of the collision at the rate of speed of fifteen to twenty miles an hour he saw the Hills automobile "coming across to the curbing from the center of the street" and into the line of travel of the defendant's automobile, and that the two automobiles were then forty-five to fifty feet apart. But the judge warrantably found "the distance to have been greater" and that "There was ample room -- more than twenty feet of the width of the street -- for him to have passed to the left of the . . . [Hills] car and in safety, by a slight turn of the wheel, and ample time for him to have done so" and that "he was negligent in failing to do so." The weather was clear, the macadam surface of the street dry, and the headlights of both automobiles were lighted. There were no other motor vehicles in the vicinity than those mentioned, passing in either direction.

The evidence warranted the judge's finding that negligence of the defendant, as well as negligence of Bennett, contributed to cause the plaintiff's injury. The fact that the Hills automobile was on its left rather than its right side of the street did not require the conclusion that Bennett's negligence was the sole cause of the collision. The mere fact that a vehicle, whose presence on the highways generally is not unlawful, is temporarily in a position on the street violative of a statute or ordinance does not require the conclusion that its presence is, as matter of law, a cause, or the sole cause, of a collision in which another vehicle is involved. Wall v. King, 280 Mass. 577, 580, 581. Butler v. Curran, 302 Mass. 1, 3-4, and cases cited. There is nothing in this case to take it out of the rule that ordinarily where a collision occurs between travellers on a highway the issue as to negligence is for the fact finding tribunal. White v. Calcutt, 269 Mass. 252, 255. Beebe v. Randall, 304 Mass. 207, 209-210.

Since, apart from the matter of registration, we reach

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the conclusion that the judge did not err in finding that negligence of the defendant contributed to cause the plaintiff's injury, it is unnecessary to determine whether the defendant's automobile was, as the judge found, improperly registered.

The defendant's requests for rulings to the effect that negligence of Bennett is a bar to the plaintiff's recovery were rightly denied. [Note 1] Bessey v. Salemme, 302 Mass. 188.

The plaintiff on the night of the accident was taken to a hospital where she remained over a month. A physician, who after her discharge from the hospital treated her for several months, was called as a witness by the plaintiff. On direct examination he described her condition while under his care. He testified that before treating her he had informed himself as to her medical history from the time of the accident. He was then asked what this information was and replied, it was that the plaintiff had been injured in an automobile accident, had been taken to the hospital where it was found from examination and X-rays that she was suffering from fractures of the jaw and ribs, a probable injury to her right scapula and considerable shock. At the request of the defendant the judge reported the defendant's objections to this question and to the answer. Later in the course of the trial the records of the hospital were admitted in evidence without objection from the defendant. They verified the information which had

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been given to the physician before he undertook the treatment of the plaintiff. There was no prejudicial error merely because the hospital record showing the injuries of the plaintiff, which was later introduced in evidence without objection, was not in evidence at the time the physician testified. Morrison v. Lawrence, 186 Mass. 456, 458. Letchworth v. Boston & Maine Railroad, 220 Mass. 560, 564. Pendleton v. Boston Elevated Railway, 266 Mass. 214, 219. Clark-Rice Corp. v. Waltham Bleachery & Dye Works, 267 Mass. 402, 412. Stowe v. Mason, 289 Mass. 577, 582. Kelley v. Boston, 296 Mass. 463, 466, 467.

There is no basis for the contention made by the defendant that there was no evidence showing that the injuries of the plaintiff were caused by the collision of the two automobiles. Prior to the collision she was riding on the right hand side of the rear seat of the Hills automobile. After the collision she was lying on the street five feet behind the Hills automobile. She was quickly placed upon a mattress and taken by a passing automobile to the hospital. She then had the injuries described in the hospital report.

The defendant's requests for rulings to the effect that negligence of the operator of the Hills automobile was the sole cause of the plaintiff's injury, that the plaintiff was negligent and that no act or omission of the defendant contributed to cause the collision were rightly denied.

Order dismissing report affirmed.