Bellenger v. Nally

• Decision Date: 04 April 1933
• Citation: 185 N.E. 346,282 Mass. 523
• Parties: BELLENGER v. NALLY. SAME v. MONAHAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 523

185 N.E. 346

BELLENGER

v.NALLY.

SAME

v.MONAHAN.

Supreme Judicial Court of Massachusetts, Suffolk.

April 4, 1933.

Exceptions from Superior Court, Suffolk County; Frederick J. MacLeod, Judge.

Actions by Rodney Bellenger against Thomas F. Nally, and by the same plaintiff against George H. Monahan. Verdict in favor of plaintiff in each case, and defendants bring exceptions.

Exceptions overruled.David H. Fulton, of Boston, for plaintiff.

Wilfred B. Keenan and James A. Treanor, Jr., both of Boston, for defendants.

CROSBY, Justice.

These are actions of tort brought to recover for personal injuries, sustained by the plaintiff on October 3, 1927, on North Beacon street, in Watertown, in this commonwealth, by reason of being struck by an automobile truck owned by the defendant Nally and operated by the defendant Monahan. In the same actions the plaintiff seeks to recover for damage to his automobile. The declarations as amended are substantially the same, each declaration containing counts for negligence and for wilful, wanton or reckless misconduct of the driver of the truck. The answer of the defendant Monahan was a general denial, contributory negligence, that at the time of the accident the plaintiff's automobile was not registered in accordance with the laws of this commonwealth and was a trespasser on the highway and for that reason the plaintiff cannot recover. The answer of the defendant Nally was the same as that filed by the defendant Monahan, except that he further answered ‘that at the time and place alleged in the plaintiff's declaration, the defendant's automobile was not being operated by one who was acting as agent for the defendant within the scope of his employment.’ This last defence is now waived by the defendant Nally. The actions were tried to a jury. At the close of the evidence each defendant filed a motion for a directed verdict. These motions were denied. There was a verdict for the plaintiff in each case. The jury answered ‘No’ to the following special questions: (1) ‘As to whether the car was illegally registered’; (2) ‘as to whether if it was so illegally registered, it contributed to cause the accident.’ The cases are before this court on the defendants' exceptions to the refusal of the trial judge to grant the defendants' motions for directed verdicts, to his refusal to give certain rulings requested,to certain rulings made upon the evidence, and to the charge. The pleadings are made a part of the bill of exceptions which contains all the material evidence.

Upon the evidence considered most favorable to the plaintiff, and the reasonable inferences to be drawn therefrom, the judge correctly ruled that the evidence warranted findings of negligence and of willful, wanton and reckless conduct of the driver of the truck. The plaintiff testified that at the time of the accident he was coming from Boston and going in a westerly direction toward Watertown to visit a friend; that about 7 p. m. as he was driving over the North Beacon street bridge he heard a noise in the rear of his automobile, and as the rear tire carrier had been repaired that day he thought it might not be all right and stopped to see if there was any trouble with it; that he stopped on the west side of the bridge about one hundred feet from the end under a large electric light; that it had been dark for a short time; that he went to the rear of his automobile and looked at the tire carrier and stood there a minute when he was struck; that at the time his automobile, with the lights on and the emergency brake set, was parked close to the right hand curbstone, facing west, at a point just over the crest of the bridge where there was a slight down grade; that the grade was about three per cent on each side of the bridge; that when he was struck he was standing behind his automobile facing it; that he did not know what struck him at the time. The roadway on the bridge was sixty feet wide between the curbs.

The defendant Monahan testified that when he struck the plaintiff's automobile he was going around eighteen or twenty miles an hour; that the plaintiff's automobile was parked right against the curb, and the plaintiff was near the back of the left wheel stooped over, looking at the tire rack or something; that he was about ten or twelve feet from the plaintiff's automobile when he first saw the plaintiff leaning over; that ‘the reason why he did not see the man before then was that he was watching some one going the other way and there was a car coming down towards him that came away over on his side of the road.’ He had previously testified that about six o'clock that night he went into a ‘speakeasy’ and had three drinks of whisky. He further testified that in the Waltham court where he was charged with operating an automobile upon a public way while under the influence of liquor he pleaded guilty.

Charles A. Cotter, a police officer, testified that at the time of the accident he was about two hundred feet from the place where it occurred; that he found the plaintiff lying with his hand and shoulders on the curbing of the sidewalk within three or four feet of an arc light; that he was bleeding from his head, and there was blood on his side, and he was unconscious. This witness further testified that Monahan staggered, that there was a strong odor of liquor from his breath, his eyes were ‘glassy’ and he was very drunk; that he asked Monahan how the accident occurred and Monahan replied, ‘I don't know. I was asleep’; that from the place where the plaintiff was lying in the street down to the plaintiff's car, a distance of about fifty feet, there were skid marks on the road, and there was a dent in the left rear of the plaintiff's automobile; that the witness arrested Monahan at the place where the accident occurred and got him into the automobile that carried the plaintiff to the hospital; that when the witness came out of the hospital, about ten or fifteen minutes later, he found Monahan asleep and took him to the police station in the same automobile.

The evidence was ample to support a finding of negligence. Blood v. Adams, 269 Mass. 480, 169 N. E. 412;Learned v. Hawthorne, 269 Mass. 554, 169 N. E. 557;McCarron v. Bolduc, 270 Mass. 39, 169 N. E. 559;Kirby v. Keating, 271 Mass. 390, 171 N. E. 671. Verdicts for the plaintiff could rightly have been found against both defendants on the counts for negligence. Although the testimony of the witness Cotter that Monahan stated that he was asleep was limited to the case against Monahan, the evidence was sufficient to support the counts which alleged negligence without his testimony. As it was admitted that Monahan was the agent of Nally, the latter was chargeable with the negligence of Monahan. It could not properly have been ruled that the plaintiff was negligent because he stopped his automobile on the bridge.

Upon the evidence most favorable to the plaintiff, the jury were justified in finding that the operation of the truck in the circumstances constituted wilful, wanton or reckless conduct. Leonard v. Conquest, 274 Mass. 347, 174 N. E. 677. ‘The alleged wrongdoer acts wantonly, willfully or recklessly only when he inflicts the injury intentionally, or is so utterly indifferent to the rights of others that he acts as if such rights did not exist. The result is a willful and not a negligent wrong.’ Isaacson v. Boston, Worcester & New York Street Railway Co., 278 Mass. 378, 387, and cases cited at page 388, 180 N. E. 118, 121. ‘The complete indifference to consequences distinguishes wrongs caused by wantonness and recklessness from torts arising from negligence. * * *’ Freeman v. United Fruit...