MORGAN WORTHY vs. FRANCIS X. HURLEY, temporary conservator.

JAMES F. SCHOFIELD vs. JUDITH A. SMALL.

348 Mass. 782

January 4, 1965

There must be a new trial in this action of tort arising from an automobile collision in which the plaintiff had verdicts. The judge so instructed that the jury could have allowed damages for aggravation of a previous disease although there was no evidence of this, and could have estimated future damages on the basis of the plaintiff's supposedly impaired earning capacity and future medical bills although the evidence did not support a forecast of such items. Also, the charge permitted the jury to estimate the plaintiff's loss in the damage to his automobile with no evidence as to the effect on the value of the car of the damage done to it in the crushing of its front end. The instruction as to the presumption of the plaintiff's due care was not in accordance with the rule. Potter v. John Bean Div. of Food Mach. & Chem. Corp. 344 Mass. 420 , 425. Apparently neither party's view was obscured and there was no basis for reading to the jury the law as to required conduct under such circumstances (G. L. c. 90, Section 14). Although prejudice is not clearly shown as to either of these two instructions in respect of liability they tended to confuse the jury. The evidence as to the place of the accident was such that it was not error to read to the jury the right of way law, G. L. c. 89, Section 8.

Exceptions sustained.