Inangelo v. Petterson

Crosby, J. The plaintiff, a girl about eleven years of age, while crossing a street at a place where a walk had been constructed for pedestrians, was struck and injured by an automobile operated by the defendant. The accident occurred about noon. There was [440] evidence that the street was twenty-five feet wide; that the plaintiff looked in both directions and waited for automobiles to pass, and then started across; that she had reached the opposite side and had her right foot, on the curbstone when she was struck by the automobile; that she did not see it until after she was struck; and that the automobile was travelling at the rate of thirty or thirty-five miles an hour at that time. It is conceded that there was evidence of the defendant’s negligence. Upon the facts recited in the record it could have been found that the plaintiff was in the exercise of due care. Beale v. Old Colony Street Railway, 196 Mass. 119, 123. Patrick v. Deziel, 223 Mass. 505. Prendergast v. Boston Elevated Railway, 232 Mass. 409, 411. The plaintiff offered in evidence a part of the hospital record respecting her case, which was admitted. The following part of the record was offered by the defendant and excluded subject to the defendant’s exception: “‘Present Illness,’ while patient was running along the road four days ago, she was run over by an automobile producing injuries as per local (left leg).” The statute under which hospital records are admissible in evidence, St. 1905, c. 330, § 2, as amended by St. 1908, c. 269, and by St. 1912, c. 442, § 2, permits their introduction so far as they relate “to the treatment and medical history of such cases; but nothing therein contained shall be admissible as evidence which has reference to the question of liability.” Clearly the purpose of the statute was to exclude any part of a record that referred to the question of liability; such evidence would be hearsay and contrary to a well established rule. The defendant relies on the decision in the recent case of Leonard v. Boston Elevated Railway, 234 Mass. 480. It was there decided that in the trial of an action for personal injuries the recital in the record “Odor of alcohol on breath” could not be held as matter of law not to relate to the plaintiff’s medical history, and may have been a material fact to consider in making a diagnosis of his condition. In the case at bar the complete record is annexed to the bill of exceptions, from which it appears independently of the portion excluded that the plaintiff received an injury to her left leg; it is plain that so much of the record as was competent under the .statute was admitted and the defendant was not harmed by the [441] exclusion. To have permitted the defendant to introduce that part which recited that the plaintiff was injured while she “was running along the road” would have been in direct violation of the statute. The case of Wilder v. General Motorcycle Sales Co. 232 Mass. 305, cited by the defendant, is not an authority in favor of his contention; in that case no question respecting the admissibility of a hospital record was considered. Exceptions overruled.