Baker v. Hemingway Bros. Interstate Trucking Co.

• Decision Date: 27 December 1937
• Citation: 299 Mass. 76,12 N.E.2d 95
• Parties: WALTER F. BAKER v. HEMINGWAY BROTHERS INTERSTATE TRUCKING COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 76

12 N.E.2d 95

WALTER F. BAKER v. HEMINGWAY BROTHERS INTERSTATE TRUCKING COMPANY.

Supreme Judicial Court of Massachusetts, Barnstable.

December 27, 1937

January 4, 1937.

Present: RUGG, C.

J., DONAHUE LUMMUS, & QUA, JJ.

Evidence Presumptions and burden of proof. Negligence, Contributory Motor vehicle, In use of way.

A plaintiff, who in direct examination testified that, as he was driving his automobile in the night time, he first saw an object with which he later collided when it "seemed very close about right in front of him," and in cross-examination that it "seemed to be no more than twelve feet from him," was entitled to the benefit of the testimony of a companion that when first seen by the plaintiff the object was seventy-five feet away.

A ruling that the operator of an automobile, which collided from the rear with an unlighted platform motor truck in a country district at night, was guilty of contributory negligence was not required by evidence as to the speed of the automobile and the distance the truck was ahead when he first saw it, and that his legally equipped headlights were deflected downward to aid drivers approaching from the opposite direction.

TWO ACTIONS OF TORT. Writs in the Superior Court dated June 17, 1931, and December 10, 1932, respectively.

Verdicts for the plaintiff in the sums, respectively, of $3,500 and $250 were recorded with leave reserved, and thereafter Donahue, J., ordered verdicts entered for the defendant. The plaintiff alleged exceptions.

The cases were submitted on briefs.

H. F. Hathaway, for the plaintiff. A. Sherman, for the defendant.

DONAHUE, J. The plaintiff brought these actions to recover for personal injuries and damage to his automobile which resulted when the automobile driven by him was in collision with an automobile truck of the defendant. There were verdicts for the plaintiff which were received under leave reserved. On motions of the defendant, the judge later entered verdicts for the defendant (G. L. [Ter. Ed.] c. 231, Section 120). The cases are here on exceptions of the plaintiff to the allowance of those motions.

The collision occurred at night in a thinly settled country district in the town of Mattapoisett where for a distance of a quarter of a mile there were no intersecting streets and no street lights. Just prior to the collision the plaintiff was looking ahead and operating the automobile at a rate of speed of twenty-five to thirty miles an hour up a slight grade in the road. The macadam street was about twenty-four feet wide and the right hand wheels of the automobile were about three feet from the right hand edge of the macadam.

A passenger on the front seat of the automobile saw a dark object in the road about seventy-five feet ahead and the plaintiff "practically" simultaneously looked and saw directly ahead of him a large dark object. The plaintiff testified on direct examination that the object "seemed very close . . . about right in front" of him, and on cross-examination that it "seemed to be no more than twelve feet from him . . . . It looked like a big black wall. It had no distinguishing features about it." On seeing the object the plaintiff immediately turned abruptly to the left and applied both hand and foot brakes but there was a collision.

The dark object which the plaintiff saw was in fact a disabled automobile truck of the defendant which was being towed by another truck of the defendant at the rate of speed of eight miles an hour. It was an empty, flat, platform truck with no side or back boards and no covering except over the driver's seat. The platform extended several feet back of the rear axle. The original paint on the truck had worn off. It was described as being of "a dirty color." It was the rear left corner of the platform of the truck which was in contact with the right side of the plaintiff's automobile.

There was evidence warranting the conclusion that the rear red light with which the truck was equipped was not, at the time, lighted, and that the defendant's employee in charge of the truck was negligent. The defendant made before us no contention to the contrary.

There was testimony that the headlights on the plaintiff's automobile "were equipped as required by law." By means of a switch the driver could deflect the light downward somewhat so that the rays of light would not shine in the eyes of operators of...