Bessey v. Salemme

• Decision Date: 31 January 1939
• Citation: 19 N.E.2d 75,302 Mass. 188
• Parties: ADRIAN E. BESSEY, administrator, v. FRANK SALEMME. ADRIAN E. BESSEY, administrator, v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

302 Mass. 188

19 N.E.2d 75

ADRIAN E. BESSEY, administrator, v. FRANK SALEMME. ADRIAN E. BESSEY, administrator, v. SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

January 31, 1939

May 6, 1938.

Present: LUMMUS QUA, DOLAN, & COX, JJ.

Negligence Imputed, Guest, Motor vehicle, In use of way, Contributory Due care of child. Parent and Child. Practice, Civil Requests, rulings and instructions.

A finding that the operator of a six ton motor truck was negligent was warranted by evidence that he drove it down grade at the rate of forty to forty-five miles an hour at about the center of a twenty-five foot road toward two approaching vehicles with one of which he collided as it turned out to its left from behind the other.

Evidence merely that occupants of an automobile did nothing when the operator, because of the sudden stopping of another automobile directly in front, turned quickly to the left into the path of a rapidly approaching truck, thus causing an instant collision, did not require a ruling that they were guilty of contributory negligence.

A request for an instruction to the jury that the "evidence indicates" a certain fact, and that, if they "so find" there could be no recovery, properly was refused as seeking an instruction in violation of G.L. (Ter.

Ed.) c. 231, Section 81.

There was no evidence warranting a finding of contributory negligence of a boy nine years of age injured in a collision of motor vehicles in one of which he was riding where it appeared merely that he was "just sitting" on the rear seat with his mother.

A boy nine years of age riding in an automobile operated by his father when he sustained an injury in a collision with a motor truck caused by negligence of both operators was old enough to care for himself, and the father's negligence was not imputable to him so as to bar his action against the operator of the truck.

A guest in a private vehicle, capable of exercising care for his own safety and not in a relationship with the driver of agency or participant in a joint enterprise, if himself not contributorily negligent, either in surrendering care of himself to the driver or in any other particular, is not barred from recovery against a third person for injuries due to concurrent negligence of the driver and the third person.

THREE ACTIONS OF TORT. Writs in the Superior Court dated August 25, 1932.

The actions were tried together before Donahue, J. In the first action the defendant asked for the following rulings:

"4. The evidence indicates that the plaintiff's intestate surrendered all care of himself to the driver. If you so find, then he was negligent and cannot recover.

"5. Plaintiff's intestate, a minor, submitted himself to the care of his father and is bound by his father's unlawful and negligent acts."

In the second action the defendant asked for the following ruling: "4. The evidence indicates that the plaintiff's intestate surrendered all care of herself to the driver. If you so find, then she was negligent and cannot recover."

In the third action, the defendant asked for the following ruling: "4. The evidence indicates that the plaintiff surrendered all care of herself to the driver. If you so find, then she was negligent and cannot recover."

In his charge, the judge instructed the jury: "Now in the case of a person riding as a guest or passenger in the car operated by a third person . . . the guest or passenger is barred from recovery only in case the driver of his own car is first, his servant, the master is responsible for the acts of his servants, and the servant's negligence is imputed to him; and, secondly, where a person riding in a car has an equal right, a right equal to that of the driver, to control the operation of the car. He may not be his servant, but the owner of the car has the right to control its operation, of course; and, thirdly, where a person riding in a car has made a voluntary and unrestrained surrender of the care of his person to the driver of the car.

"Now, in this case Mr. Bessey was not the servant of Mrs. Berry, his sister; neither Mrs. Bessey nor Mrs. Berry had the right to control the operation of that car; and thirdly, there is no evidence in the case to warrant a finding that either one voluntarily and without constraint made a complete surrender of all care of their persons or her person to the caution of the driver. So that these cases, if you get to the question of the negligence of the occupants of the Bessey car, you will decide their right to recover upon their own due care, not upon the due care of the driver. That is, I instruct you in this case that though you find that Mr. Bessey was negligent in operating the motor vehicle that he was driving, and that his negligence contributed to the accident, even though that happened, these plaintiffs may recover. When I say `these plaintiffs', in the case of John and Mrs. Bessey I mean the administrator of each. These plaintiffs may recover provided there was no act or omission on the part of either which had any causal relation to the happening of the accident. That is, their right to recover depends upon their own due care . . . . The right of John and right of Mrs. Bessey and right of Mrs. Berry depends upon the due care of each . . . but in John's case there is no evidence one way or the other of his due care, and, the burden being upon the defendant, I rule as a matter of law the defendant has not sustained the burden of proof that John Bessey was guilty of contributory negligence. 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."

There were verdicts for the plaintiffs respectively as follows: for the plaintiff in each of the first two actions in the sum of $1 for causing conscious suffering and of $3,000 for causing death; and for the plaintiff in the third action in the sum of $3,500.

The defendant alleged exceptions, among other things, to the refusal to give the rulings above set out; to the "charge there is no evidence that either of the passengers had surrendered their care to that of the driver"; that "although Bessey was negligent the passengers may recover"; "that there was no evidence of John Bessey's negligence and he could recover if the defendant was negligent."

J. F. Cavanagh, for the defendant. E. Martin, for the plaintiffs.

COX, J. 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 that 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 . Mazmanian v. Kuken, 285 Mass. 516 . G.L. (Ter. Ed.) c. 89, Section 1; c. 90, Section 17. The cases are distinguishable from Baker v. Davis, 299 Mass. 345 .

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; Bernier v. Pittsfield Coal Gas Co. 257 Mass. 188, 190; compare Bray v.

Hickman, 263 Mass. 409 , 416, 417), 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 "this car that had stopped and this truck met their . car about the time they got by this car head on. That is all she remembers"; 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...