Bresnick v. Heath
| Decision Date | 31 October 1935 |
| Citation | 198 N.E. 175,292 Mass. 293 |
| Parties | BRESNICK v. HEATH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Action of tort by Samuel Bresnick against Chester B. Heath. From an order of the Appellate Division dismissing a report by Davis J., plaintiff appeals.
Order dismissing report reversed.
Appeal from Appellate Division of District Court, Northern district.
J. C Johnston, of Boston, for appellant.
R. J Dunn, G. W. Roberts, and J. F. Lawton, all of Boston, for appellee.
This is an action of tort to recover compensation for damages to the automobile of the plaintiff alleged to have been caused by the negligence or concurring negligence of the defendant. The plaintiff offered evidence tending to show that on a July morning he permitted his son, twenty-one years of age and a licensed operator, to take his automobile; that in it the son in company with two others was traveling along the Andover road, so called, in Reading; that Franklin street intersected and crossed Andover road at right angles; that the paved portion of Andover road was approximately forty feet in width and provided four lanes for automobile traffic, the outside lanes being of concrete and the inside lanes, divided by a white line, being of tarvia construction; that there was a gravel shoulder on each side of the road about a foot and a half wide; that Andover road on each side of the intersection was straight for a distance of more than five hundred feet, so that anyone approaching the intersection had an unobstructed view of it; that when the plaintiff's son reached a point two hundred feet before the intersection with Franklin street he observed the automobile driven by the defendant coming slowly from his right along Franklin street toward Andover road where it came to a full stop at the right hand edge of the concrete; that at that time the plaintiff's son was driving at approximately forty miles an hour, there being no other traffic in sight on either Andover road or Franklin street; that believing the defendant had stopped to allow him to pass, he increased the speed of the automobile to about forty-five miles an hour; that when he reached a point perhaps one hundred fifty feet from the intersection the defendant suddenly and without warning started to cross Andover road; that the plaintiff's son thereupon applied his brakes and swerved to the left intending to drive into Franklin street to his left in order to avoid the accident; that the defendant continued to cross Andover road; that the automobiles came together nearly in the middle of the highway, the plaintiff's automobile striking that of the defendant at about the left front door.
Interrogatories propounded to the defendant by the plaintiff were put in evidence wherein the defendant stated that he was operating his automobile at about ten miles an hour just before the accident; that as he approached the outer edge of Andover road he looked in both directions and saw no traffic approaching, having an unobstructed view on his left for about five hundred feet; that he drove his automobile on to the concrete lane and then observed an automobile driven at a terrific speed rapidly approaching on his left; that he continued to cross the highway in order to give the approaching automobile a clear road, and had reached the center black surface with his front wheels in contact with the opposite cement lane when his automobile was struck with violence and overturned; that he gave the operator of the other automobile an unobstructed way to proceed if he had had his automobile under control; that the acts of the operator of the plaintiff's motor vehicle which contributed to the accident were driving at a reckless speed, failure to keep to the right side of the road and dragging brakes one hundred seventy-eight feet before the collision.
The plaintiff requested these rulings which were denied by the trial judge:
The report is imperfect in that it contains no statement whether the finding was for the plaintiff or for the defendant. The opinion of the appellate division states that the ‘ evidence amply warranted a finding for the defendant’ and ordered that the report be dismissed. The appeal of the plaintiff brings the case here. It must be assumed in these circumstances that the finding was for the defendant.
On such an appeal findings of fact made on oral evidence are not reviewable. Engel v. Checker Taxi Co., 275 Mass. 471, 176 N.E. 179; Winchester v. Missin, 278 Mass. 427, 428, 180 N.E. 215; Mahoney v. Norcross, 284 Mass. 153, 187 N.E. 227. An appeal brings before this court for consideration only rulings of law made by the trial judge and reported by him to the appellate division and questions of law touching the action of the appellate division thereon. G. L. (Ter. Ed.) c. 231, §§ 108, 109; Woodman v. Haynes (Mass.) 193 N.E. 570.
The claim of the plaintiff to a recovery is based on the rule of law that the bailor of an automobile, free from personal negligence, may recover against a third person for damage to that automobile resulting from the concurring negligence of the bailee and such third person. The defendant rightly concedes that the negligence of the son of the plaintiff in operating his automobile is not to be imputed to the plaintiff. Nash v. Lang, 268 Mass. 407, 167 N.E. 762.
The report is construed as presenting for determination the questions of law raised by the refusal to give the requests of the plaintiff for rulings.
The denial of request 6 is not shown to be error. The defendant had given in answer to interrogatories a full description of the occurrences connected with the accident and had stated in detail all that he did to avoid the collision. In these circumstances the rule stated in Howe v. Howe, 199 Mass. 598, 603, 85 N.E. 945,127 Am.St.Rep. 516, and Attorney General v. Pelletier, 240 Mass. 264, 316 134 N.E. 407, to the effect that failure of a party in the face of evidence adverse to his interests to testify as to matters within his knowledge may be regarded as conduct in the nature of an admission, becomes inapplicable. Merely because a party has answered interrogatories may not be enough in all cases to avoid the adverse inference from failure to give testimony on the witness stand. The case at bar does not belong to that class. The answers of the defendant to the interrogatories appear to have covered the whole field of his...
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