Bartley v. Phillips
| Decision Date | 14 September 1944 |
| Citation | 317 Mass. 35,57 N.E.2d 26 |
| Parties | ALBERT E. BARTLEY v. WILLIAM E. PHILLIPS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
February 9, 1944.
Present: FIELD, C.
J., LUMMUS, DOLAN & RONAN, JJ.
Practice, Civil Requests, rulings and instructions, New trial, Judicial discretion, Damages. Negligence, Use of way, Contributory. Damages, For tort.
The judge presiding at the trial of an action for personal injuries sustained when the plaintiff was struck by an automobile operated by the defendant could not be required to rule as to the possible legal consequences of the speed of the automobile where that was only one of several elements of the defendant's alleged negligent conduct.
A request for a ruling which assumes a disputed fact as to which the evidence is conflicting properly may be refused.
In an action for personal injuries sustained when the plaintiff was struck by an automobile while crossing a street three hundred feet from an intersection where there were traffic lights which he could have operated by a button to stop vehicular traffic, it was proper to refuse rulings requested by the defendant that the plaintiff's failure to cross the street "in accordance with the traffic control lighting system" and
"at the intersection . . . by use of the pedestrian traffic control lights" was negligence on his part.
Discussion by LUMMUS, J., of the rules of law governing the determination of the question whether damages awarded by a jury or by a judge without a jury were so excessive or so inadequate that the award ought not to stand.
Action by a trial judge permitting an award of damages for personal injuries to stand cannot be reversed by this court on the ground that the award was excessive or inadequate unless the judge's action was an abuse of discretion in the sense that it was judicial action that no conscientious judge, acting intelligently, could have taken honestly.
A refusal by a judge of a District Court to grant a new trial of an action for personal injuries sustained by a man sixty-four years of age when he was struck by an automobile, sought on the ground that an award of damages in the sum of $21,000 was excessive could not be said to be an abuse of discretion where at the trial eleven months after the injury there was evidence of a bad compound comminuted fracture of the bones of the leg causing shock and pain and requiring an operation, extended hospitalization and possibly a further operation, and of uncertainty as to ultimate union of the bones.
TORT. Writ in the Central District Court of Worcester dated January 14, 1942.
The case was heard by Mahoney, J.
B. C. Tashjian, for the defendant. C. M. Burwick, for the plaintiff.
The plaintiff, a pedestrian, was injured when struck by an automobile operated by the defendant in Oxford on December 26, 1941, at half past five in the afternoon, when it was dusk. A judge in a District Court found for the plaintiff and assessed damages in the sum of $21,000. The Appellate Division dismissed a report, and the defendant appealed. The points argued are (1) the refusal of certain requested rulings presented by the defendant relating to the defendant's alleged negligence, (2) the refusal of other such requested rulings relating to the plaintiff's alleged contributory negligence, and (3) the denial of the defendant's motion for a new trial because of alleged excessive damages.
The roadway was thirty-eight and one half feet wide, with shoulders on each side of from five to seven feet. The surface was of macadam. The area was fairly well lighted, in large part by "flood lights" at a restaurant and a lunch cart on the northerly side of the road from one hundred thirty-seven feet to one hundred fifty-four feet east of the place of the injury. There was also a street light only six feet away. The weather was fair, the road dry, and the visibility good.
The defendant was travelling westerly, at a speed of thirty miles an hour. His attention was attracted to an unknown man on the right or northerly side of the road who was described as a "hitch hiker." He first saw the plaintiff, who was near the "hitch hiker," only when within fifteen feet of him, and then too late he turned a little to the left in the attempt to avoid hitting the plaintiff. He did not sound his horn. The right front of the automobile struck the plaintiff. The plaintiff, dressed in dark clothes, was crossing the road from the southerly side to the northerly side. He had started at a time when all traffic was stopped by traffic lights, and had reached a point about five feet from the northerly edge of the highway when he saw the defendant's automobile coming about seventy-five feet away. He took one or two more steps, and then was struck. The judge found that the defendant "was not observing carefully the road ahead," and that if he had been he would have seen the plaintiff, who was "plainly visible to an ordinary and prudent motor vehicle operator." He found that the plaintiff's injury was caused by the defendant's negligence. The foregoing findings were warranted by the evidence.
1. The judge was right in refusing a requested ruling that the defendant was not shown to be negligent. The defendant's request numbered 17 was as follows: "The operation by the defendant of a motor vehicle on the highway at a speed of twenty-five to thirty miles an hour under the circumstances existing in this action does not warrant a finding that the defendant was negligent." The speed was only one of the elements of the defendant's conduct. The judge was not required to rule as to the possible legal consequences of the speed considered as a specific act of alleged negligence. Barnes v. Berkshire Street Railway, 281 Mass. 47 , 50, et seq. Incidentally the request somewhat minimized the speed as found by the judge, and substantially minimized the speed as shown by some of the evidence.
2. The defendant's requested ruling numbered 1 was that "on all the evidence, the plaintiff was not in the exercise of due care." The defendant requested more particular rulings on the subject, to the effect that the plaintiff's "failure to look carefully in both directions before proceeding on the highway" was negligent (request 3), that his failure to cross the road "in accordance with the traffic control lighting system then in operation" was negligent (request 19), and that his failure to cross the road "at the intersection of Leicester Street by use of the pedestrian traffic control lights" was negligent (request 20).
Request numbered 3 was not based upon any fact admitted or found. The plaintiff testified that before starting to cross the road he "looked up and down the road" and "saw no cars coming," that while crossing he was "always looking up and down the road to see if anything was coming," that "when he got to the center of the road he looked to the left and right up and down the road and saw nothing coming," and that after that he "continued looking left and right and saw nothing coming." The request was ineffective because it assumed a disputed fact. Liberatore v. Framingham, 315 Mass. 538 , 543. The judge found that "the plaintiff looked carefully in both directions before proceeding on the highway."
There was evidence that about three hundred feet easterly from the place where the plaintiff crossed the road, at the corner of Leicester Street, there was a pole on which there was a button that could be operated by a pedestrian wishing to cross the road. Pressing the button would cause red and amber lights to show, halting all vehicular traffic while the pedestrian crossed the road. Before starting to cross the road the plaintiff had passed that pole. He did not use the button. His failure to do so was not negligence as matter of law. His conduct was to be considered as a whole, and compared with that of the standard man of ordinary prudence under similar circumstances. Even though there was a safer course than the one that he adopted, it does not follow as matter of law that the course that he adopted was negligent. It was only ordinary care for his own safety that he owed to the defendant. Barnes v. Berkshire Street Railway, 281 Mass. 47, 49, 50. The judge found that "the accident did not occur at the intersection of the . . . [road] and Leicester Street, or at a place where traffic was controlled by lights," and that "the plaintiff had a right to cross the highway where he did cross." The judge was right in refusing the requested instructions numbered 19 and 20. We think, too, that he was right in refusing the more general requested ruling numbered 1.
3. The only other point argued by the defendant is that there was error in denying his motion for a new trial because of excessive damages. The evidence relating to damages tended to establish the following facts. The plaintiff was a widower, sixty-four years old. Besides a superficial injury to the hand and shoulder, he suffered a bad compound comminuted fracture of the fibula and tibia of the right leg permitting rotation of the foot. He suffered from shock, and the injury was painful. He had to be operated on under a general anaesthetic, and the bones had to be fastened together by a metallic plate and screws. His leg was in a plaster cast for months. He remained in bed about two months, and at the hospital more than eight months. When he left the hospital, the fibula was healed, but there was no union in the tibia even at the time of the trial in November, 1942. Whether there will be union is uncertain, especially in view of the plaintiff's age, but the chances somewhat favor ultimate union. If union comes it will not come before a year and a half or two years after the injury, and even then the plaintiff could not walk without...
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