Brown v. Thayer

• Decision Date: 19 June 1912
• Citation: 212 Mass. 392,99 N.E. 237
• Parties: BROWN v. THAYER et al. CREESY v. HARRIGAN. SAME v. THAYER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

212 Mass. 392

99 N.E. 237

BROWN

v.THAYER et al.

CREESY

v.HARRIGAN.

SAME

v.THAYER.

Supreme Judicial Court of Massachusetts, Norfolk.

June 19, 1912.

Exceptions from Superior Court, Norfolk County; William Cushing Wait, Judge.

Action by J. Everett Brown, as administrator of the estate of Richard Brown, deceased, against William H. Thayer and George M. Harrigan, to recover damages for the wrongful killing of plaintiff's decedent in an automobile accident, in which action plaintiff recovered a verdict of $8,000 against both defendants. Separate actions by Richard L. Creesy against George M. Harrigan and against William H. Thayer for personal injuries, in which plaintiff recovered a verdict of $12,500 in each case, and defendants bring exceptions. Exceptions in the first case sustained, and verdict set aside, and exceptions in the last two cases overruled.

Chas. W. Bartlett, Jos. W. Bartlett, Fredk.

E. Jennings, and Arthur T. Smith, for plaintiff Creesy.

Frank E. Bradbury, of Boston, for plaintiff Brown.

M. O. Garner, of Boston, for defendant Harrigan.

Spront & Kendall, of Boston, for defendant Thayer.

BRALEY, J.

[1][2] The plaintiff's intestestate, and the plaintiff Creesy, were traveling on foot over a public way, and nearly parallel with them a carriage with two occupants was going in the same direction. At the time of the accident the pedestrians were on the extreme right, with the carriage slightly in advance intervening between them and the left side of the street. In their rear the automobiles of the defendants in the control and management of their respective servants were approaching intending as shown by the event to pass the team in the ordinary course of travel. The law of the road as defined in Rev. Laws, c. 54, requires the driver of a carriage or other vehicle traveling in the same direction to pass the carriage ahead by driving to the left of the middle of the traveled part of the way, and if this requirement as the presiding judge correctly told the jury was inapplicable to pedestrians, it did apply to the team, and the automobiles of the defendants were vehicles within the meaning of the statute. Lynch v. Fisk Rubber Co., 209 Mass. 16, 17, 95 N. E. 400, and cases cited. It could not have been ruled, as the defendants requested, that the law of the road had no application, for the jury were to decide whether the attempt to pass on the right of the team contrary to the statute was prudent under the circumstances. Bourne v. Whitman, 209 Mass. 155, 163, 95 N. E. 404,35 L. R. A. (N. S.) 701. The duty of exercising ordinary care to avoid injury to the group of travelers, whom the jury could have found were in plain sight for at least 400 feet before they were reached, rested upon the drivers, for whose negligent conduct the defendants are responsible. The proper discharge of this duty depended upon the conditions by which they were confronted, and the judge did not err when with not undue elaboration he instructed the jury that in passing upon the question they might consider the powerful agencies placed under their control, and the disastrous consequences to other travelers if there was mismanagement. Nelson v. Old Colony St. Ry., 208 Mass. 159, 161, 162, 94 N. E. 313, and cases cited. It was peculiarly a question for the judgment of the jury familiar from observation, and possibly from experience, with this mode of travel. What might be due care in the management of a horse and carriage jogging along a country road affords no standard for the measurement of the prudence of the driver of a motor car running over the same road at high speed.

[3][4][5] The evidence descriptive of the circumstances of the collision cannot be reconciled, but after the plaintiffs have obtained a verdict the inferences from the testimony most favorable to them are to be considered in deciding the question of the liability of the defendants. Bagley v. Wonderland Co., 205 Mass. 238, 243, 91 N. E. 317. As the cars came up to pass the team the jury would have been warranted in finding that the car of the defendant Thayer turned to the right while the car of the defendant Harrigan turned to the left. The width of the roadway was insufficient to permit the car on the right to pass, and its horn was not sounded until the car came almost upon the plaintiff Creesy, and the intestate. It then swerved to the left bearing down directly upon them, and then moved quickly to the right. The jury could have found that being thus beset, and to escape from jeopardy, they were instantaneously forced over into the middle of the road, and in front of the car passing on the left, which gave no warning of its approach, when simultaneously both were struck, and thrown to the ground, where this car passed over them, instantly killing the intestate, and seriously injuring Creesy. But the jury had further evidence before them which goes far to explain the extraordinary nature of the casulty, as well as the inexcusable negligence of the defendants. It appeared from witnesses whose credibility and opportunity for observation were for the jury, and whose evidence as to the rate of speed at different points along the way was clearly competent and admissible, that for some distance the drivers had engaged in a trial of speed with varying success, and as they approached the team the Thayer car was leading, followed closely by the Harrigan car. Carroll v. Boston Elev. Ry., 200 Mass. 527, 533, 86 N. E. 793;Thomson v. Pentecost, 206 Mass. 505, 510, 92 N. E. 1021;Com. v. Brayman, 136 Mass. 439;Parker v. Boston & Hingham Steamboat Co., 109 Mass. 449, 451. The driver of this car admitted that he took no precautions to ascertain if other travelers were using the way, and when the automobiles came up to go by, but were parted and deflected by the position of the team, the jury well might have been satisfied that each car had attained such velocity as to threaten instant disaster to all who were in its path. Or, if put more briefly, the evidence must have convinced the jury that the casualty sprang from an indifference on the part of each driver to the safety of other travelers, amounting to a wanton disregard of their rights. Our public ways are not designed or maintained as thoroughfares for racing automobiles, and those who use them for this purpose do so at their peril. Horsman v. Brockton & Plymouth St. Ry., 205 Mass. 519, 520, 91 N. E. 897. It also is manifest that the jury could have found that if the driver of the Thayer car had driven to the left of the team, or had driven at reasonable speed, or if the driver of the Harrigan car had exercised ordinary care, the accident might have been prevented. Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224,3 L. R. A. (N. S.) 345,4 Ann. Cas. 396, and cases cited; McCrohan v. Davison, 187 Mass. 466, 73 N. E. 553, and cases cited.

[6][7] The principle is settled by our decisions that, where two or more tort-feasors by concurrent acts of negligence which although disconnected yet in combination inflict injury, the plaintiff may sue them jointly or severally, although he can have but one satisfaction in damages. Feneff v. Boston & Maine R. R., 196 Mass. 575, 82 N. E. 705. If each contributes to the wrong as in the case at bar, the proximate cause is the wrongful act in which they concurrently participate, whether the result causes instantaneous death, or injuries which the sufferer survives. D'Almeida v. Boston & Maine R. R., 209 Mass. 81, 87, 95 N. E. 398;Oulighan v. Butler, 189 Mass. 287, 293, 75 N. E. 726;Doe v. Boston & Worcester St. Ry., 195 Mass. 168, 171, 80 N. E. 814;Feneff v. B. & M. R. R., 196 Mass. 575, 82 N. E. 705. The requests of the defendants, with an exception presently to be noticed, in so far as they were not covered by the charge, were rightly refused, and the instructions were unexceptionable.

[8] But the first action is brought under Rev. Laws, c. 171, § 2, as amended by St. 1907, c. 375: ‘If a person or corporation by his or its negligence, or...