Button v. Crowley

• Decision Date: 26 October 1933
• Citation: 187 N.E. 615,284 Mass. 308
• Parties: BUTTON v. CROWLEY. QUIGLEY v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 308

187 N.E. 615

BUTTON

v.CROWLEY.

QUIGLEY

v.SAME.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 26, 1933.

Exceptions from Superior Court, Worcester County; T. J. Hammond, Judge.

Separate actions by Rose Button and by Agnes E. Quigley against Joseph M. Crowley. In the first case, after verdict for plaintiff for $3,528, the trial judge ordered verdict for defendant and plaintiff alleged exceptions; and in the second case there was a verdict for plaintiff for $2,500 and defendant alleged exceptions.

Plaintiff's exceptions in first case sustained and judgment entered on verdict. Exceptions of defendant in second case overruled.

J. E. Casey, of Boston, for plaintiff Button.

C. E. Tupper, of Worcester, for plaintiff Quigley.

C. W. Proctor, of Worcester, for defendant.

PIERCE, Justice.

‘This is a joint Bill of Exceptions of Rose Button, the Plaintiff in case # 47669 and Joseph M. Crowley, the Defendant in case # 49559,-Consolidated by agreement of all parties in interest.’ The actions are of tort, brought by the respective plaintiffs against the same defendant, and arise out of an automobile accident that occurred on July 7, 1931, in the Town of Charlemont, Massachusetts, when an automobile, owned and operated by the defendant, in which both plaintiffs were riding, collided on a public way with another automobile and both plaintiffs sustained personal injuries. The cases were tried to a jury in the Superior Court. At the close of the evidence the defendant presented motions in writing for a directed verdict in each case which were denied and the defendant duly excepted. The cases were then submitted to the jury with special questions propounded by the judge. The jury answered the questions and returned a verdict for the plaintiff Rose Button and for the plaintiff Agnes E. Quigley. Before entry of the verdict in the Button case, the judge reserved leave with the assent of the jury to enter a verdict for the defendant if upon the exceptions taken, or the question of law reserved, the trial court or the Supreme Judicial Court should decide that such a verdict for the defendant should have been entered. The defendant then presented a motion in writing for a verdict for the defendant in accordance with leave reserved, which was allowed. To the allowance of the motion the plaintiff Rose Button duly excepted. The judge did not disturb the verdict in the case of Agnes E. Quigley.

The evidence in its aspect most favorable to the plaintiffs warranted the jury in finding the following facts: On the day previous to the accident Agnes E. Quigley, sister of the plaintiff Rose Button, hired the defendant to take her, Rose Button and her son and his friend, in the defendant's automobile to Fort Ethan Allen, Vermont, a distance of about two hundred and fifty miles from Worcester, Massachusetts, and return. The above described persons left Worcester in an automobile owned and operated by the defendant at about 8:15 P. M. July 6, 1931, and arrived at the fort at about 5:15 A. M. July 7, 1931. At Fort Ethan Allen they left the boy and his friend and then, without considerable delay, the plaintiffs and the defendant started on their return toward Worcester by way of North Adams and down the Mohawk Trail until they arrived at the scene of the accident in said Charlemont. On the return journey the automobile was driven only by the defendant; the plaintiff Button rode on the rear seat and the plaintiff Quigley on the front seat to the right of the driver. As the automobile at about 11:30 A. M. July 7, 1931, approached the scene of the accident, on the main highway in East Charlemont, coming east at the rate of fifty to sixty miles an hour, it made a gradual turn over the center of the highway from a point at a bridge near a bend in the road about eighty feet from the point of collision, and bore over the imaginary white center line of the roadway to the left and struck the oncoming automobile as it was being turned to its right in an effort of the driver to avoid a collision with the defendant's automobile. On the plaintiffs' testimony the jury would have been warranted in finding that on the return trip from Fort Ethan Allen the defendant drove much of the way at the rate of fifty or sixty miles an hour and that the plaintffs told him not to drive so fast that they were afraid they would meet with an accident; that Mrs. Button said: ‘It's better to take your time than to drive so fast. It's better for you to drive up side of the road and take a rest’; that only a few minutes before the accident Mrs. Quigley told the defendant not to drive so fast and to drive up and rest along the road and the defendant said he could not because he was in a hurry to get home; that the defendant was ‘kind of dozy’ and that Mrs. Quigley thought he needed a rest and that it would be better that he should rest than to drive so fast and have an accident. The jury would have been warranted in finding that immediately preceding the accident Mrs. Quigley's attention was diverted from the road and from watching the defendant to see that he did not sleep, as the defendant...