Beaver v. Costin

• Decision Date: 07 June 1967
• Citation: 227 N.E.2d 344,352 Mass. 624
• Parties: Ruth A. BEAVER v. Philip M. COSTIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 344

227 N.E.2d 344

352 Mass. 624

Ruth A. BEAVER v. Philip M. COSTIN.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 7, 1967.

Decided June 7, 1967.

Philip D. Epstein, Boston, (Solomon M. Feldman, Boston, with him), for plaintiff.

William E. Carey, Lynn, for defendant.

Before WILKINS, C.J., and SPALDING, CUTTER, SPIEGEL and REARDON, JJ.

REARDON, Justice.

This is an action of tort to recover damages for personal injuries and comes here on the plaintiff's exceptions to the direction of a verdict for the defendant and the exclusion of certain testimony.

The evidence most favorable to the plaintiff is summarized as follows. On September 1, 1961, while seated on the right hand side of an automobile driven by one Grant, the plaintiff was struck on the right side of the face and sustained a laceration, a 'dirt wound,' which required ten stitches to close following irrigation and debridement at a hospital. The object or objects which caused the injury had been propelled through the open window to the plaintiff's right. Immediately prior to this occurrence, Grant had driven the car over a railroad bridge in Swampscott when he noticed the defendant operating a rotary type power mower 'on the right hand side of the road about twenty feet off the bridge' and somewhat downhill. He saw debris in the form of dirt and rocks in the process of being ejected from the left side of the mower which was headed in the same direction as his automobile. The narrowness of the road and a blind curve required that he stay well to his right of the highway in the interest of safety. As he passed the mower at a distance of six feet, the plaintiff and he heard a series of impacts of objects against the side of the car. It was at this point that the plaintiff was struck. Following the accident Grant observed four or five chip marks on the side of the car which had not been there previously. These marks extended to the upper part of the right door, about two inches below the window. The defendant, who was, save for a coworker, the only person on foot in the vicinity, was aware that the mower he operated ejected cut grass four or five feet from the machine and heavier objects a further distance. The defendant had noted prior to the accident that the machine was throwing grass onto the street. A sand and gravel truck carrying loads of crushed rock frequently passed along the street and occasionally dropped rocks onto the roadway in negotiating the curve.

To entitle the plaintiff to go to the jury there must be sufficient evidence (1) to warrant a finding of negligence on the defendant's part, and (2) to warrant a finding that there was a causal connection between such negligence, if found, and the plaintiff's injuries. Berardi v. Menicks, 340 Mass. 396, 399, 164 N.E.2d 544, 83 A.L.R.2d 1.

1. Upon the foregoing recitation there was evidence from which the jury could find negligence on the part of the defendant. 'Negligence * * * in its ordinary sense, is the failure of a responsible person, either by omission or by action to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances.' Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505, 506, 4 A.L.R. 1185. Carroll v. Bouley, 338 Mass. 625, 627, 156 N.E.2d 687. See Harper and James, § 16.9, at 928--936. Only where no view of the evidence could warrant a jury in finding the defendant negligent can it be held as a matter of law that the plaintiff cannot recover. Luz v. Stop & Shop, Inc., of Peabody, 348 Mass. 198, 203--204, 202 N.E.2d 771. The jury would have been warranted in finding that the defendant should have foreseen that the operation of the power mower in a manner which allowed rocks and other debris to be thrown into the road traveled by others created an unreasonable risk of harm. Motter v. Snell, 250 Iowa 1247, 95 N.W.2d 735, 98 N.W.2d 746.

The defendant testified to his awareness of the risk created in operating the mower in such a manner. He stated that when he began mowing that morning the grass was ejected into the street. However,...