Burgess v. Giovannucci

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: LUMMUS
• Citation: Burgess v. Giovannucci, 314 Mass. 252, 49 N.E.2d 907 (Mass. 1943)
• Decision Date: 29 June 1943
• Parties: BURGESS v. GIOVANNUCCI, and nine other cases.

314 Mass. 252

49 N.E.2d 907

BURGESS

v.GIOVANNUCCI, and nine other cases.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1943.

Exceptions from Superior Court, Suffolk County; Beaudreau, Judge.

Actions by Anna Burgess, Victor Burgess, Philip Johnson and Selma Johnson against Melvin Giovannucci, by Anna Burgess, Victor Burgess, Philip Johnson and Selma Johnson against Frank G. Augusta, and by Frank G. Augusta and Melvin Giovannucci against Philip S. Johnson, arising out of automobile collision. On exceptions.

Exceptions overruled.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and COX, JJ.

E. Z. Dymsza, of Boston, for Burgess and others.

S. P. Sears, of Boston, for Giovannucci.

E. Field, of Boston, for Augusta.

LUMMUS, Justice.

These cases arise out of a collision on July 9, 1939, of two automobiles owned and operated respectively by Melvin Giovannucci and Frank G. Augusta with one owned and operated by Philip B. Johnson, otherwise called Philip Johnson. Giovannucci and Augusta sued Johnson for property damage only. Johnson sued Giovannucci and also Augusta for property damage, personal injuries, and consequential damages resulting from personal injury to his wife, Selma Johnson. Victor Burgess sued Giovannucci and also Augusta for personal injuries and consequential damagesresulting from personal injury to his wife, Anna Burgess. Anna Burgess and Selma Johnson, who with Victor Burgess were passengers in the Johnson automobile, sued Giovannucci and also Augusta for personal injuries. The cases were tried together.

The collision occurred on Randolph avenue in Quincy, a three-lane highway, the outside lanes of which were of cement and the center lane of which was of macadam. The Johnson automobile was travelling toward Boston, in heavy traffic, while the Giovannucci automobile was travelling away from Boston, followed by the Augusta automobile, in lighter traffic. Johnson turned to his left into the center lane to pass another automobile. There was a conflict of testimony as to whether the collision took place in the center lane, as Johnson and his passengers contended, or in the lane in which the other two automobiles would naturally travel. There was also a conflict of testimony as to whether the Johnson automobile was going faster or slower than the others.

A woman named Fagel, called as a witness by Johnson and his passengers, testified that immediately after the collision she went out into the road; that she saw among other things the Augusta automobile ‘more to the right of the road, facing towards the electric pole going towards Randolph’ and six or eight inches from the pole; and that lines on the road, not present before the collision, came from the center of the road ‘right direct to the back wheels of his car.’ On cross-examination she testified that a man came to see her about the accident, and she signed a statement. It was suggested to her by the cross-examiner that the man was an investigator from Johnson's insurance company. Then counsel read from the statement that skid marks made by Augusta's automobile in the right lane were about a car length along, and led up to the back wheel where the automobile was at the edge of the road. The witness testified that she said that. The cross-examiner asked, ‘To Johnson's own insurance company you told them that the marks made by the Augusta car were on his own lane, leading up to his wheel and not a word about there [their?] being in the center lane?’ Johnson and his passengers objected and excepted to the admission of this question. The witness answered, ‘I told * * * [them] they were in the center lane.’

Johnson and his passengers barely argue this question of evidence. They say merely that ‘the questions were calculated to discredit the plaintiff's witness' and were ‘highly improper.’ We assume without deciding that this constituted argument. See Rule 2 of the Rules for the Regulation of Practice before the Full Court 1939, 303 Mass. 678; City of Boston v. Dolan, 298 Mass. 346, 355, 356, 10 N.E.2d 275. The statement and the questions were admissible for the purpose of contradicting the testimony of the witness. The reference to Johnson's insurance company was harmless, for the fact that he was insured appeared without objection from the testimony of another witness.

At the time of the collision the Johnson automobile was ascending or about to ascend a hill. More than four hundred feet ahead was a sign reading: ‘Hill, single line.’ There was no evidence that the sign expressed any valid legal regulation of travel. The time was about half past eight in the evening, but it was still daylight. Whether Johnson could have read the sign before the collision did not appear. But he testified that ‘he knew that on that hill going up the hill he was supposed to keep in single line.’ He and his passengers excepted to the denial of two requested rulings, in substance that the sign had no bearing on the cases. Even though the sign was not authorized by law, and was not legally binding upon motorists, it was one of the circumstances in the light of which the conduct of Johnson was to be judged. See Reardon v. Marston, 310 Mass. 461, 462, 463, 38 N.E.2d 644; Nelson v. Dennis, 38 Manitoba, 553. The judge in his charge so limited its effect.

There was evidence that immediately following the collision there was oil, water and broken glass in the center lane. Johnson and his passengers excepted to the denial of a...