Marlow v. Dike

Rugo, C.J. This is an action of tort to recover compensation for the conscious suffering and death of the plaintiff’s intestate alleged to have resulted from the negligence of the defendant in operating an automobile on a public way. The only question presented is whether there was evidence sufficient to support a finding that the death of the plaintiff’s intestate, a boy between six and seven years of age, was caused by the conduct of the defendant. It appeared that the boy was knocked down by the automobile of the defendant, thereby suffering a fracture of the nasal bone, accompanied by active hemorrhage and considerable shock. An operation was required. He was admitted to a hospital on the same day and discharged nineteen days later. About five months subsequent to these injuries, directly after supper, he became unconscious, had convulsions and died within a few hours. A doctor was called who had never seen the boy before and did not know of his previous injuries. [40] He thought the boy was suffering from poisoning from toxemia of the intestines, and made a death certificate to that effect. Called as a witness, he testified that, in view of the injuries sustained by the boy, he did not think the cause of death was as set forth in his certificate and that, if he had known of the injury, he would not have assigned the reasons for death there stated. He was unable to express an opinion as to the cause, or the more probable cause, of death; that it might have come from the cause stated in the certificate or from the injury. The doctor who attended the boy in the hospital at the time of the injury, having had stated to him in hypothetical questions a description of the condition of the boy during the last few hours of his life, testified that his explanation was that in the process of healing from the fracture and operation some clot “might have become organized causing an embolus or thrombus, and then got loose,” thus causing death, and that this explanation in his opinion was “the probable cause” of death. This was positive testimony from one qualified to express an opinion. If the jury gave it credence, it was adequate to show that there was a causal connection between the negligent act of the defendant and the death of the boy. The plaintiff was not required to prove the precise organic changes which took place. McNicholas v. New England Telephone & Telegraph Co. 196 Mass. 138, 141. Although the evidence was slender, it cannot be pronounced insufficient. The case at bar thus is distinguishable from the numerous decisions illustrated by Bigwood v. Boston & Northern Street Railway, 209 Mass. 345, to the effect that there can be no recovery when the cause of death is left to surmise or conjecture. Exceptions overruled.