Home MACNEIL BROS. COMPANY vs. STATE REALTY COMPANY OF BOSTON, INC.

341 Mass. 725

June 2, 1960

Decree affirmed with costs of the appeal to the defendant. The petition seeks an order suspending, pending appeal, the operation of a decree of the Superior Court. G. L. c. 214, Section 22 (as amended through St. 1948, c. 309). After hearing the single justice dismissed the petition. The plaintiff appealed. This was not a decision on the merits, and no abuse of discretion is disclosed by the record. Handy Cafe, Inc. v. Costello Distrib. Co. 334 Mass. 707 .

Home ANNIE M. WARD vs. EDGAR M. GROUT.

341 Mass. 725

June 2, 1960

Exceptions overruled. This is an action of tort arising out of a collision on September 23, 1956, in South Attleboro, between an automobile operated by the plaintiff and one operated by the defendant. The jury returned a verdict for the defendant. The sole question arises out of a ruling on evidence which arose in these circumstances. According to the plaintiff's evidence her automobile had crossed the southbound lanes of Route 1A and had gotten into the first northbound lane when it was struck by the defendant's automobile which was proceeding south at forty to forty-five miles an hour. One of the issues was whether the defendant was negligent in not stopping his automobile in time to avoid the accident. On cross-examination of the defendant he was asked if he was aware that an automobile travelling at forty to forty-five miles per hour "travels a certain number of feet per second." The defendant answered, "I know it does, but I don't know the number of feet per second." The witness, having been shown a pamphlet entitled "Questions and Answers Relating to Motor Vehicle Laws," was asked questions based on the pamphlet as to how far an automobile going at given speeds would travel in certain intervals of time. He answered that he did not know. Counsel for the plaintiff then proceeded to ask a further question of this sort based on the pamphlet, and it was excluded on objection of the defendant, subject to the plaintiff's exception. The extent of cross-examination rests largely in the sound discretion of the trial judge. In view of the defendant's previous answers, we cannot say that the judge erred in excluding the question which is the subject of the plaintiff's exception. Commonwealth v. Beal, 314 Mass. 210 , 229.

Home MARY BARTHOLOMEO vs. JANE BILSBORROW.

341 Mass. 725

June 22, 1960

Exceptions overruled. This is an action of tort to recover damages for personal injuries

Page 726

sustained as the result of a collision of automobiles on Coggshall Street, New Bedford, on May 9, 1957. The plaintiff was riding in the back seat of an automobile owned and operated by her daughter Lorraine Karasch and the other automobile was operated by the defendant. The action was tried to a jury who found for the defendant. It comes here upon the plaintiff's exception to the denial of a request for an instruction made by the plaintiff at the conclusion of the judge's charge. There was no error. At the trial there was evidence from which the jury could find that both operators were negligent. The only evidence bearing upon the question of whether Lorraine was acting as an agent of the plaintiff so that the negligence of Lorraine would be imputed to the plaintiff was the testimony of the plaintiff that she had requested her daughter Lorraine to drive her to New Bedford to do shopping. The instruction requested by the plaintiff was to the effect that no relationship of agency existed because the plaintiff had no right to exercise control over the driving of her daughter. Rule 71 of the Superior Court (1954) provides that all requests for instructions shall be made in writing before closing arguments of counsel. No such requests were made. However, even in the absence of such requests, "the parties were entitled to adequate and accurate statement of the law." Hughes v. Whiting, 276 Mass. 76 , 79. Cipollone v. D'Alessandro-Crognale, Inc. 333 Mass. 469 , 475. In the case at bar the judge adequately and accurately charged the jury on the question of agency and the element of control necessary to establish it. In fact he gave several examples of situations bearing upon the element of control.