MELVIN I. HOROWITZ & another vs. JOHN N. BOKRON.

CUTTER, J. This action of tort arises out of an automobile accident on Route 9 in Brookline. The defendant, who did not testify and called no witnesses, excepted to rulings relating to evidence, to the judge's conduct of the trial, and to parts of his charge. There was a verdict for one plaintiff, Mrs. Horowitz, on one count of the declaration. Evidence of the following facts appears.

On February 14, 1954, the plaintiffs left a motion picture show in Framingham about 11:30 P.M. in an automobile owned by Mrs. Horowitz and drove to a cafe or bar on Huntington Avenue, Boston, to see the defendant, who owned the establishment. The plaintiffs invited the defendant to go with them to their house in Waban and the defendant "sent over a couple of drinks to their table." Mrs. Horowitz did not see her husband consume the drink that had been served to him, but he "may have sipped it." The husband testified that he "took a sip." They waited for the defendant until a little after 2:00 A.M. when they left with the understanding that the defendant would meet them at the plaintiffs' house.

The plaintiffs, with the husband driving, went out through Brookline Village at an average speed of forty to fifty miles an hour to Route 9 and west on that route, encountering little traffic on a clear, dry night. A slight distance from the intersection of Route 9 and Reservoir Road, near a fire station, on a three lane section of a divided highway, another automobile overtook them. This was a little east of a place where (as shown by the photographic exhibits) the highway bent slightly to the left before a further slight bend to the right. This automobile, driven by the defendant, passed the plaintiffs "right beside their car" on their left on the lane nearest to the center reservation, "hugging the curb," hit a cast iron pole supporting a traffic light which stood "on the edge of the island," knocked it about five hundred feet,

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went straight for a time, then veered right across in front of Mrs. Horowitz's automobile, hit the right hand curb or some tree and then shot back to the left, and came to rest with its front wheels on the reservation. The plaintiffs testified that the defendant's automobile hit the right side of Mrs. Horowitz's automobile. The Horowitz automobile stopped some thirty feet west of, and beyond, the defendant's automobile. Both plaintiffs were seriously injured. There was testimony that the plaintiffs "crossed the intersection of Reservoir Road . . . going between 40 and 50 miles an hour," and that the defendant's automobile "was going between 70 . . . [and] 80 miles an hour as it went by" the automobile in which the plaintiffs were riding. There was a tire mark to the rear of the left wheel of the Horowitz automobile for "roughly 300 feet" and tire marks from the rear of the defendant's automobile. The Horowitz automobile was "badly damaged on the front end." Photographs showed that the hood was crumpled and the bumper crushed and broken, with some damage to the radiator and front part of the engine. The front bumper, grille, and left fender of the Bokron automobile were damaged.

At the time of the collision there was an opened bottle of whiskey in Mrs. Horowitz's automobile, which had been "half full or close to it" when it had been taken from the Horowitz house. Mrs. Horowitz testified that this was done in order that the young woman left in charge of the plaintiffs' children would not use it. On the record it is not clear what amount was in the bottle after the accident. The plaintiffs testified that they had not consumed any of the contents after leaving their house.

On the issue of the operation of Mrs. Horowitz's automobile by her husband on the night of the accident, the only evidence was as follows: "Q. Now, Mrs. Horowitz, at the time that you were in town with your husband, and on the way back, will you tell us whether or not you, in any way, directed or controlled the actions of your husband in the operation of the car? A. No, I didn't. Q. And was the automobile being used for any special business or errand on

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your behalf? A. No." Mrs. Horowitz testified that there was nothing which she could have done that she did not do to avoid the accident. It was not disputed that Horowitz did all the driving, at least after leaving Framingham. The automobile that Horowitz "was driving was the only car that he and his wife owned. He drove it from time to time, but did not use it in his business. He had a car for business, but it was not registered in his name." Mrs. Horowitz had bought the automobile "herself."

1. The defendant contends that he was prejudiced by the action of the judge in permitting medical witnesses to testify on the issue of damages and Mrs. Horowitz's serious injuries, which were of a nature likely to excite sympathy, before the plaintiffs had established a basis for any finding of liability and before cross-examination of Mrs. Horowitz had been completed. In a case like the present, conceivably premature proof of damages may hinder the jury's objective consideration of the issue of liability. It is for the judge to weigh this risk against the public interest in avoiding undue, inconvenient use of the time of busy medical witnesses. The order in which witnesses shall be called is a matter within the trial judge's discretion. Cushing v. Billings, 2 Cush. 158, 159. Donahue v. Kenney, 330 Mass. 9, 12. Wigmore, Evidence (3d ed.) Section 1869. We cannot say that the trial judge here abused his discretion.

2. The defendant objected to the introduction in evidence by one medical expert of colored photographic slides showing the extremely unpleasant injuries to Mrs. Horowitz's face and neck, because these slides were inflammatory in character. No contention is made that the slides did not represent conditions as they were. A trial judge should ascertain by suitable preliminary inquiry, before admitting such evidence, at least that it is sufficiently verified, that it reflects the situation fairly, and that it is likely to be of sufficient assistance to the jury to warrant its use. So far as its admission or exclusion may be a matter of discretion (see Howe v. Boston, 311 Mass. 278, 281-282), his action will not be revised unless plainly wrong. Everson v. Casualty

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Co. 208 Mass. 214, 219-220. Commonwealth v. Noxon, 319 Mass. 495, 536-537. Commonwealth v. Makarewicz, 333 Mass. 575, 583-584. There was no error in admitting the colored slides.

3. A police officer, who had arrived at the scene shortly after the accident, testified on cross-examination that he had personal recollection about facts stated in his report concerning the amount of whiskey in the bottle found in Mrs. Horowitz's automobile. He was asked, "Again making reference . . . [to his report], was there a small amount of liquor left in that bottle?" The witness, on objection by the plaintiffs, was not permitted to answer and the defendant claimed an exception. An offer of proof had been previously made that the officer's report showed that there was only a small amount of whiskey in the bottle, which Mrs. Horowitz later testified was "half full or close to it" when she left home. The question was relevant and the reference to the report in the question we interpret as merely a request that the officer refer to the report to refresh his recollection. See Fisher v. Swartz, 333 Mass. 265, 267. This exception must be sustained.

4. The first exception to the charge deals with the judge's statement, "Then, of course, there was some reference to a doctor . . . [T]here was some examination made by this doctor of the plaintiff . . . and there was a comment made on the failure of that doctor to . . . testify. And you may consider that fact also . . . and you may draw such inference as you feel is reasonable and proper as . . . reasonably prudent men and women in this case." To this part of the charge, the defendant claimed an exception. A doctor called by the plaintiffs had testified that the plaintiffs, on April 22, 1954, had been examined by a Dr. Dorgan in behalf of the defendant. In the bill of exceptions, which is stated to constitute "all of the evidence . . . material to the exceptions of the defendant," there was no evidence that Dr. Dorgan was available to testify. The record does not indicate the language of counsel's comment as to the failure of the doctor to testify or show which counsel made the

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comment. We might easily infer that the comment occurred in the argument to the jury by the plaintiffs' counsel. We need not, however, make this fairly obvious deduction, because the judge made the statement in his charge that the jury might "consider" the "failure of that doctor to appear and testify," and might "draw such inference as you feel is reasonable and proper." This instruction was not limited by the judge to the issue of damages, although it had relevance only to that issue. Evidence being lacking that Dr. Dorgan was available as a witness, this statement in itself was improper, and the defendant's exception to this particular statement in the charge was a sufficient direction of the judge's attention to its impropriety. London v. Bay State St. Ry. 231 Mass. 480, 483-486, 487. Heina v. Broadway Fruit Mkt. Inc. 304 Mass. 608, 610-612. McGeorge v. Grand Realty Trust, Inc. 316 Mass. 373, 377-378. See Commonwealth v. Domanski, 332 Mass. 66, 71; Jones v. Spering, 334 Mass. 458, 461-462; Commonwealth v. Ries, ante, 565, 585-586; Wigmore, Evidence (3d ed.) Sections 285, 286; McCormick, Evidence, Section 249. Compare Murphy v. Moore, 307 Mass. 163, 164-165; Commonwealth v. O'Rourke, 311 Mass. 213, 222-223; Williamson v. Feinstein, 311 Mass. 322, 325-326; Mitchell v. Silverstein, 323 Mass. 239, 240. Compare also O'Connor v. Benson Coal Co. 301 Mass. 145, 150-151. The exception to this statement in the charge must be sustained.

5. Following the judge's charge on the issue of contributory negligence and the imputing of any negligence of Horowitz to Mrs. Horowitz, the owner of the automobile, the defendant claimed an exception and requested amplification and clarification of a part of the charge [Note p741-1] in various

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respects, inviting the judge's attention to Mendolia v. White, 313 Mass. 318, and Menzigian v. LaRiviere, 334 Mass. 610. His exceptions were sufficient to "put before us the full context of the sentences referred to in the specific exceptions." See Cahalane v. Poust, 333 Mass. 689, 690.

There had been very detailed testimony about the circumstances of the accident and Horowitz's efforts to avoid a collision at that time. There were in evidence photographs, showing the two automobiles immediately after the accident and the extensive damage to the front portions of each of them, and also a diagram taken from the police report showing the routes taken by the two automobiles immediately before the accident. From the plaintiffs' testimony as to the speed of their automobile, or, if the jury did not believe that testimony, from the badly mangled front part of that vehicle, the jury could have found that the plaintiffs were travelling at a higher speed than was reasonable. Morton v. Dobson, 307 Mass. 394, 398. See Mitchell v. Silverstein, 320 Mass. 524, 526-527.

The judge submitted the case to the jury not only upon the issue of the defendant's negligence but also upon the issues of contributory negligence and whether any such contributory negligence could be imputed to Mrs. Horowitz. It does not appear to be argued by the plaintiffs that these last two issues were improperly submitted to the jury, possibly because, in a case in which the pertinent facts with respect to an automobile accident are fully presented in evidence, the issue whether the several operators involved were negligent is for the jury if there is any evidence on which can be based a finding of negligence attributable to them, respectively, and contributing to the accident. Morton v. Dobson, 307 Mass. 394, 397, 398. Brightman v. Blanchette, 307 Mass. 584, 586. Gaines v. Ratnowski, 311 Mass. 254, 258. See Jennings v. Bragdon, 289 Mass. 595, 597; Lech v. Escobar, 318 Mass. 711, 712. The charge on the principles

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and considerations governing the issue whether the contributory negligence of Horowitz, if any, should be imputed to his wife, was meager. Compare Deyette v. Boston Elevated Ry. 297 Mass. 129; Kingsbury v. Terry, 300 Mass. 516; Sanjean v. Hyman, 302 Mass. 224; and Menzigian v. LaRiviere, 334 Mass. 610, with Foley v. Hurley, 288 Mass. 354, 356; Guy v. Union St. Ry. 289 Mass. 225, 230; Mendolia v. White, 313 Mass. 318; and Abbate v. Service Bus Lines, Inc. 323 Mass. 754. Compare also Commonwealth v. Sherman, 191 Mass. 439, 441. This portion of the charge was followed by confusing instructions [Note p746-1] on a related aspect of contributory negligence. The confusion resulting from the aggregate of the instructions quoted in the margin was not eliminated by additional instructions to which the defendant also excepted. The jury should have been instructed more "clearly, adequately, and correctly concerning principles that ought to guide and control their action." See Mahoney v. Gooch, 246 Mass. 567, 571; Higgins v. Pratt, 316 Mass. 700, 711-712; Donnelly v. Larkin, 327 Mass. 287, 289; Sullivan v. Sullivan, 333 Mass. 512, 514.

6. We need not discuss the defendant's other exceptions. Similar questions are unlikely to arise at a new trial.

7. This is the decision of a majority of the court.

Exceptions sustained.