Avery v. R.E. Guerin Trucking Co.

• Decision Date: 15 December 1939
• Citation: 24 N.E.2d 330,304 Mass. 500
• Parties: AVERY v. R. E. GUERIN TRUCKING CO., Inc., and fifteen other cases.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 500

24 N.E.2d 330

AVERY

v.R. E. GUERIN TRUCKING CO., Inc., and fifteen other cases.

Supreme Judicial Court of Massachusetts, Worcester.

Dec. 15, 1939.

Actions of tort to recover for personal injuries and for property damage resulting from an automobile collision in which an explosion of a gasoline tank damaged property in the vicinity and injured occupants thereof. The R. E. Guerin Trucking Company, Inc., was the defendant in actions by John Avery, Kathryn Hayes, Elvera Cassanelli, p.p.a., Salvatore Iannotti, Rosa Cassanelli, Giuseppina Cimato, Anna M. Collella, John Flaminio, Louis Latorre, Felicia Buduo, Carmella Ferraro, John Ferraro and Brown Bros., Inc., Howard C. Bishop was defendant in two actions, the first by Angelina Armenti and the second by Stephen Giorgio p.p.a. The sixteenth action was by Elvera Cassanelli, p.p.a., against John M. Avery. From adverse orders the defendant Avery and the plaintiffs in the cases against the defendant trucking company and the defendant Bishop appeal.

Order for judgment against defendant Avery affirmed, order for judgment for defendant in the case of Avery against the trucking company affirmed and the orders for judgment for the defendants in the remaining cases reversed.Appeal from Superior Court, Worcester County; J. C. Donnelly, Judge.

H. H. Hartwell, J. F. Driscoll, J. Y. Young, and Nunziato Fusaro, all of Worcester, for plaintiffs.

M. Rubin, J. C. McDonald, and J. H. Droney, all of Worcester, for defendants R. E. Guerin Trucking Co., Inc., and another.

W. W. Jump, of Boston, for defendant Avery, submitted a brief.

RONAN, Justice.

These are sixteen actions of tort which, with other cases, were heard together before an auditor whose findings of fact were to be final. The auditor filed a single report.

These cases arise out of a collision between an automobile driven by Avery and a large oil tank truck driven by one Bishop, as servant of the defendant R. E. Guerin Trucking Company, Inc., at the intersection of Shrewsbury Street and Winona Street in Worcester at 1 o'clock in the morning of December 12, 1937. Shrewsbury Street is 100 feet wide and runs substantially east and west. It is 78 feet wide from curb to curb. There is a curbed grass reservation 8 feet wide in the center of the street, which divides the highway for east-bound and west-bound traffic, there being three lanes for traffic on each side of this reservation. The street is of concrete construction with a smooth but good gripping surface. Winona Street is about 33 feet wide as it enters the southerly side of Shrewsbury Street, and there is a break in the grass reservation opposite Winona Street, 35 feet distant, which is used as a crossover to reach the westbound traffic lanes on the northerly half of Shrewsbury Street. There is a clear view for one-half mile west along the southerly or east-bound traffic lanes from the intersection of Winona Street. Avery, accompanied by a woman, was travelling eastward along the left-hand traffic lane on the southerly side of Shrewsbury Street at a speed of 50 to 60 miles an hour when the front of his automobile came in contact with the oil truck. The truck was driven northward on Winona Street at a reasonable rate of speed and slowed down as it was about to enter Shrewsbury Street from Winona Street in order to enable two automobiles travelling east on Shrewsbury Street to pass in front of it. The headlights of the truck were lighted. Bishop, the driver of the truck, did not see the Avery automobile as it approached from the west until it was about 125 feet away from the truck, which was then crossing the southerly half of Shrewsbury Street and was about to enter the crossover. The front part of the truck had gone 8 feet into the crossover when the impact occurred. The truck was 28 feet long and carried an elliptically shaped tank which held 3550 gallons of oil. This tank was empty at the time of the accident, but a gasoline tank located upon the left side of the body of the truck contained 45 gallons of gasoline. Immediately after the impact the automobile and the truck caught fire. A loud explosion of the tank occurred, blowing out the entire rear end of the truck, hurling portions of the tank 150 feet away, damaging property in the vicinity and injuring the occupants.

Avery and his companion sued the trucking company. There is an action for the death of a woman who resided in the neighborhood. The other actions are for personal injuries sustained by occupants of dwellings in the vicinity and for damage to their buildings.

The auditor found that Avery was driving at a speed greater than was proper; that if he had been proceeding at a reasonable speed as he approached the intersection and had exercised reasonable caution, he could have seen the truck and avoided the accident. He found that Avery was negligently operating his automobile and that his negligence was a contributing cause of the accident. As Bishop was about to enter Shrewsbury Street he looked to the west for half a mile but did not see any vehicles approaching, although at that time there were two automobiles travelling toward him at a high rate of speed and less than three or four hundred feet away. Bishop proceeded to cross the southerly half of Shrewsbury Street and was about...