Piersall v. Harmon's Express, Inc.

15 Mass. App. Dec. 8
CourtMassachusetts District Court, Appellate Division
DecidedNovember 25, 1957
DocketNo. 5138; No. 9905
StatusPublished

This text of 15 Mass. App. Dec. 8 (Piersall v. Harmon's Express, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Piersall v. Harmon's Express, Inc., 15 Mass. App. Dec. 8 (Mass. Ct. App. 1957).

Opinion

Northrup, J.

This is an action of tort in which the plaintiff seeks to recover damages for personal injuries allegedly sustained as a result of the negligence of the defendants in the operation of a, motor vehicle on October 31, 1955 at the intersection of Brookline Avenue and Fenwood Road, Brookline, [10]*10Mass. The defendants’ answer contained a general denial.

At the trial there was evidence tending to show that on said date the plaintiff was a passenger in the front seat of a motor vehicle which was stopped at said intersection, and while so stopped, was struck in the rear with considerable force by a truck owned by the defendant, Harmon’s Express, Inc. and operated by the defendant Louis A. Paczosa. As a result of the impact the plaintiff was thrown forward, his body hitting the dash board and his head hitting the ceiling of the car in which he was riding. The plaintiff was shaken up and felt a twinge in his back. He was treated by one Dr. Lamphier, X-rays were taken and he received thirty-seven (37) physiotherapeutic treatments to his back. The plaintiff, a professional ball- player, was employed at the time of the accident as a public relations Sales Representative for the Coffee Time Products of America. He was also engaged, on his own account, in conducting speaking engagements throughout New England on the average of three to five evenings a week.

The plaintiff lost no time from his regular work as a result of the injuries he sustained, and also fulfilled all of his previously scheduled speaking commitments following the accident but “canceled” a number (8 or 10) future engagements because his back bothered him on the long drives.

During the trial the following question was put to the plaintiff on direct examination and was admitted over the objection of the defendants:

“What was your usual and normal charge for these speaking engagements?”

The witness answered, “One Hundred and Fifty Dollars.”

The defendants requested that the court’s ruling on the admissibility of this testimony be reported andi duly filed a report setting forth his objection to

[11]*11the court’s admission of the same.

The defendants duly filed the following requests for rulings:

i. The evidence does not warrant a finding that the defendant Harmon’s Express, Inc. was negligent.

а. The admissions of an agent respecting liability are not binding on the principal.

3. The evidence does not warrant a finding that the loss of speaking engagements to the plaintiff was proximately caused by the negligence of the defendants or either of them.

4. The sole evidence of negligence in this case is contained in an admission by the defendant Paczosa.

5. The evidence warrants a finding that the sole cause of the collision was the negligence of the operator of the vehicle in which the plaintiff was a passenger.

б. The evidence does not warrant a finding other than that the plaintiff was not totally disabled as a result of the accident.

7. The evidence does not warrant a finding other than that it is no more probable that the alleged injuries were caused by an act or omission for which the defendants were liable than by one for which they were not- responsible.

8. As a matter of law the loss of the speaking engagements by the plaintiff was remote and not the natural and probable result of the negligence of the defendants or either of them.

9. The evidence does not warrant a finding for the plaintiff on Count I of the declaration.

10. The evidence does not warrant a finding for the plaintiff on Count II of the declaration.

The Court allowed the defendants’ requests Nos. 2, 5, and 6 and denied requests Nos. 1, 3, 4, 7, 8, 9, and 10.

The Court found that the accident was caused by the negligence of the defendant Louis A. Paczosa and that at the time of said accident the truck was [12]*12being operated by said defendant as agent for Harmon’s Express, Inc., that as a result of the accident the plaintiff received injuries to his back and chest which required medical attendance and physiotherapy treatment; that while the plaintiff lost no time from his promotional work for Coffee Time Products of America he was unable to fulfill ten speaking engagements and that he lost as a result thereof the sum of $1500.00; that the fair and reasonable charge for medical services rendered by Dr. Lamphier was $75.00; that the fair and reasonable charge for the physiotherapeutic treatments received by the plaintiff was $259.00 and that the plaintiff was also entitled to the sum of $500.00 for pain and suffering. The Court found for the plaintiff $2,334.00.

The defendants claim to be aggrieved by the trial court’s denial of requests Nos. 1, 3, 4, 7, 8, 9, and 10 and by the Court’s admission of the testimony concerning the plaintiff’s usual charge for speaking engagements.

The defendants requests Nos. 1, 4, 9 and 10 pertain solely to the question of the liability and since the defendants at the hearing before us waived their objections to the same, the only alleged errors of law, with respect to the defendants’ requests for rulings, remaining to be considered are the court’s rulings on the denial of requests Nos. 3, 7, and 8. We find no error in the trial court’s denial of these requests.

Request No. 7 raises the question of whether the evidence warranted the trial court in finding that there was a causal connection between the accident and the injuries complained of by the plaintiff. It is well settled that the burden of establishing such a causal relationship is on the plaintiff and that the same cannot be left to imagination, speculation, conjecture or surmise. However it is equally well settled that a plaintiff is not required to exclude every possible cause except the accident but [13]*13only to show a greater likelihood that the injuries resulted from the accident than that they resulted from some other cause. Flynn v. Growers Outlet, Inc., 307 Mass. 373; Rocha v. Alber, 302 Mass. 155, 157; Marshall v. Carter, 301 Mass. 372.

Nor is a plaintiff necessarily required to prove such causal connection by direct evidence. It was said in Bigwood v. Boston & Northern St., Ry., 345, 348 that such causal connection may be established by “rational inference of probabilities from established facts”.

Applying the foregoing principles to the case at bar we are of the opinion that the direct evidence and the "rational inferences of probabilities” from the facts established by the evidence, warranted the court in finding that the injuries which the plaintiff sustained were causally connected with the accident.

The evidence warranted a finding that the motor vehicle in which the plaintiff was a passenger was struck in the rear with considerable force by a large trailer truck and that as a result of the collision the plaintiff was thrown against the dash board and also struck the roof of the automobile; that prior to the accident he had no pain in his back for a period of approximately one month and that immediately after the impact he felt a twinge in his back; that he had not been treated for any condition to his back for approximately a month prior to the accident but that immediately following the accident he received medical treatment; that his condition was such as to require seven treatments by Dr.

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Bluebook (online)
15 Mass. App. Dec. 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/piersall-v-harmons-express-inc-massdistctapp-1957.