Ceresola v. Joseph F. Paul Co.

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. Can 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.