Polmatier v. Newbury

Crosby, J. These are two actions brought to recover for persopal injuries received by the plaintiffs while riding on a motor cycle, owned and operated by the plaintiff in the first action, and for damage to the motor cycle. The alleged causes of action arise out of a collision upon a highway in Taunton between the motor cycle and an automobile owned and operated by the defendant. The only exception argued by the defendant is to the exclusion of a question put to the plaintiff in the first action upon cross-examination. He had previously testified, both upon his direct and cross-examination, that he did not have an operator’s license to run the motor cycle at the time of the accident. He then was asked, “Did you ever have an operator’s license to run a motor cycle?” This question was objected to and excluded. The general rule is well settled that acts of negligence committed by a defendant on other occasions than the one in question are held to be inadmissible. The reason for the rule is that such evidence would lead to collateral inquiries which would distract and mislead the jury from the issue on trial, and would have no logical tendency to determine it. Robinson v. Fitchburg & Worcester Railroad, 7 Gray, 92. Tenney v. Tuttle, 1 Allen, 185 [309] Gahagan v. Boston & Lowell Railroad, 1 Allen, 187. Lizotte v. New York Central & Hudson River Railroad, 196 Mass. 519. Luiz v. Falvey, 228 Mass. 253. The defendant contends that the evidence was competent on the ground that, if it appeared that the plaintiff never had been licensed to run a motor cycle, it would be evidence having a tendency to show that he was lacking in experience, skill and fitness properly to manage and control the machine at the time of the accident; and therefore, was evidence to show that at that time he was not in the exercise of due care. We are unable to agree with this contention, as the question of the plaintiff’s care could be determined only by his conduct at the time when the accident occurred. If the jury found, upon the facts as shown by the evidence, that his conduct did not contribute to his injury, his previous inexperience would be immaterial. In Lang v. Boston Elevated Railway, 211 Mass. 492, recently decided by. this court, it was held that evidence to show the length of time of the employment of and the extent of the instructions given to a motorman in charge of a car which ran into the plaintiff was improperly admitted and had a tendency to be prejudicial to the defendant upon the question of the negligence of the motorman. We regard this case as decisive upon the question of the admissibility of the evidence offered in the case at bar, although we do not mean to intimate that it was not properly excluded in accordance with the rule as stated in Luiz v. Falvey, supra, and cases therein cited. As the exception to the admissibility of the evidence above referred to is the only exception argued, the others are treated as waived? Exceptions overruled.