Bessey v. Salemme
| Decision Date | 31 January 1939 |
| Citation | 302 Mass. 188,19 N.E.2d 75 |
| Parties | BESSEY v. SALEMME (two cases). BERRY v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middlesex County; Donahue, Judge.
Actions by Adrian E. Bessey, administrator of the estate of John A. Bessey, deceased, by Adrian E. Bessey, administrator of the estate of Persis M. Bessey, deceased, and by Bertha Berry against Frank Salemme to recover damages for death and injuries resulting from automobile collision. Verdicts for plaintiffs, and defendant brings exceptions.
Exceptions overruled.
E. Martin, of Boston, for plaintiffs.
J. F. Cavanagh, of Boston, for defendant.
These are three actions of tort, which were tried together, arising out of a collision of an automobile operated by Prince M. Bessey, hereinafter referred to as Bessey, with a motor truck operated by the defendant. The plaintiff administrator's intestates, John A. Bessey and Persis M. Bessey, son and wife respectively of Bessey, and the plaintiff Berry were passengers in the Bessey automobile. There was a verdict for the plaintiff in each case.
The jury could have found that the Bessey automobile was travelling westerly and up-grade at a speed of from twenty to twenty-five miles an hour on a road, the travelled part of which was twenty-five feet wide, when an automobile, which was preceding it at a distance of from twenty to thirty feet, stopped suddenly. Bessey turned to his left to avoid a collision. The truck, operated by the defendant and weighing close to six tons, was approaching on the down-grade. At a point distant five hundred to seven hundred feet from where the collision occurred, the truck had passed an automobile travelling in the same direction, and continued on at a speed of from forty to forty-five miles an hour in ‘about’ the center of the road; ‘It did not get back in line.’ The evidence warranted a finding that Bessey was negligent in the operation of the automobile.
The defendant's first exception is to the refusal of the trial judge to allow in each case a motion for a directed verdict for the defendant, and he has argued that it should have been allowed on the ground that there was no evidence of negligence on the part of the defendant that was a contributory cause of the collision. We think there was no error. The jury could have found actionable negligence on the part of the defendant in the manner of his operation of the truck, as to its position on the road, and the rate of speed. Wall v. King, 280 Mass. 577, 182 N.E. 855;Mazmanian v. Kuken, 285 Mass. 516, 189 N.E. 815; G.L.(Ter.Ed.) c. 89, § 1; c. 90, § 17. The cases are distinguishable from Baker v. Davis, Mass., 12 N.E.2d 816.
There was no error in the refusal to give the defendant's requests which called for rulings, as matter of law, that the intestates and Mrs. Berry were guilty of contributory negligence. Even if, under Rule 71 of the Superior Court (1932), the point had been properly raised by a motion (see Carp v. Kaplan, 251 Mass. 225, 228, 146 N.E. 779;Bernier v. Pittsfield Coal Gas Co., 257 Mass. 188, 190, 153 N.E. 449; compare Bray v. Hickman, 263 Mass. 409, 416, 417, 161 N.E. 612), it could not have been sustained. The plaintiff Berry was riding in the front seat on Bessey's right, with a seven-year-old Bessey child seated in her lap. She testified that, when the automobile ahead came to an abrupt stop, Bessey turned to the left to pass ; that she first saw the truck as Bessey ‘turned out to go by this car’ when it was ‘once and a half the length of the court room distance’; that Bessey had all the privileges of a driver to drive the automobile and that she paid attention to what he was doing; that when she saw him turn out and when she saw the truck, she said nothing; that she did not anticipate there would be an accident because it happened so quickly, ‘You wouldn't have time to breathe hardly, wouldn't have time to think or wonder whether there was going to be an accident or not’; and that at the time she did not interfere with Bessey's driving of the automobile. Bessey's wife was seated on the right side of the rear seat with her son John, the other intestate, beside her. The only testimony disclosed by the record which relates in any way to what either intestate may or may not have done, or have been doing, came from another son, who was sitting on the rear seat beside the intestate John, and who testified that he did not know what John was doing just before the accident, ‘He was just sitting’; that he (the witness) did not see the truck approaching until his father turned out to pass the automobile that was ahead; that to the best of his knowledge, his mother was ‘sitting there looking straight ahead’; and that there was no conversation by his mother or the boys before the accident. A witness for the defendant testified that Bessey told him that one of his children had said ‘something about ‘Look, daddy’, something like that'; that he looked and ‘as he brought his vision back on the road he saw this car stopped in front of him.’ The question of the due care of Mrs. Bessey and Mrs. Berry was for the jury, as also was that of the son John, if there was any evidence for the jury of contributory negligence on his part. Lambert v. Eastern Massachusetts Street Railway, 240 Mass. 495, 499, 134 N.E. 340, 22 A.L.R. 1291;Gallup v. Lazott, 271 Mass. 406, 409, 171 N.E. 658;Leveillee v. Wright, Mass., 15 N.E.2d 247; G.L.(Ter. Ed.) c. 231, § 85. Compare Elfman v. Kronenberg, Mass., 13 N.E.2d 405. The cases are distinguishable from Pigeon v. Massachusetts Northeastern Street Railway, 230 Mass. 392, 119 N.E. 762;Thorp v. Boston Elevated Railway, 259 Mass. 415, 156 N.E. 748;Oppenheim v. Barkin, 262 Mass. 281, 159 N.E. 628, 61 A.L.R. 1228, and Caron v. Lynn Sand & Stone Co., 270 Mass. 340, 170 N.E. 77.
A request in each case asked the judge to state to the jury that the evidence ‘indicates' that all care of the intestates, and of Mrs. Berry, was surrendered by each to Bessey. We think the judge was right in refusing to give this request in that form. Commonwealth v. Barry, 9 Allen 276;McKean v. Salem, 148 Mass. 109, 19 N.E. 21.
The trial judge was not required to give the request that the intestate John submitted himself to the care of his father and was bound by his father's unlawful and negligent acts. The request calls for the expression of a conclusion on the part of the judge that the father's acts were unlawful and negligent.
The defendant excepted, in the case of John Bessey, to what we take to be that portion of the judge's charge in which he ruled, as matter of law, that the defendant had not sustained the burden of proving that John Bessey was guilty of contributory negligence, and that ‘John Bessey's administrator has a right to recover here by proving that the defendant was negligent and that his negligence contributed to the death of John.’
This intestate was nine years of age at the time of the accident. There was no evidence as to what he was doing or not doing just before the accident except that ‘He was just sitting’ there, and that there was no conversation with his mother or between her sons before the accident.
It is well settled in this Commonwealth that, in an action of tort to recover for the negligence of a third person, and where the plaintiff is too young to exercise care for his own safety, the negligence, if any, of his custodian will be imputed to the plaintiffs. Tucker v. Ryan, Mass., 10 N.E.2d 73, and cases cited. In many of the cases such a plaintiff is referred to by the court as one of tender years. See Wright v. Malden & Melrose Railroad, 4 Allen 283. There is no hard and fast rule that at any particular age a minor is presumed to be able to comprehend risks or to be capable of negligence. Extreme cases can be stated which obviously fall on one side or the other of the line.' Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 494, 95 N.E. 876, 878, Ann.Cas.1912B, 797. In the case of Young v. Small, 188 Mass. 4, 73 N.E. 1019,108 Am.St.Rep. 457, where the plaintiff was nine years of age, it was said at page 5, 73 N.E. at page 1019: In the case of Fayard v. Morrissey, 281 Mass. 166, 183 N.E. 154, where the plaintiff was about eight years and one month old, the court said at pages 168, 169, 183 N.E. at page 155: Sullivan v. Boston Elevated Railway, 192 Mass. 37, 43, 78 N.E. 382. See Casey v. Boston Elevated Railway, 197 Mass. 440, 83 N.E. 867;Russo v. Charles S. Brown Co., 198 Mass. 473, 476, 84 N.E. 840;Milbury v. Turner Centre System, 274 Mass. 358, 363, 174 N.E. 471, 73 A.L.R. 1070. There is no evidence that this intestate was negligent. See Elfman v. Kronenberg, Mass., 13 N.E.2d 405.
From what has been said, we think it follows that no negligence of Bessey was imputable to his son John. See Fayard v. Morrissey, 281 Mass. 166, 168, 169, 183 N.E. 154. The latter was merely sitting in an automobile at the time of the injury which resulted in his death, and was old enough to take care of himself as a...
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