Cannon v. Bassett

• Decision Date: 17 September 1928
• Citation: Cannon v. Bassett , 264 Mass. 383, 162 N.E. 772 (Mass. 1928)
• Parties: CANNON v. BASSETT (two cases).
• Court: Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 383

162 N.E. 772

CANNON

v.BASSETT (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

Sept. 17, 1928.

Exceptions from Superior Court, Worcester County; P. J. O'Connell, Judge.

Actions by Carolyn E. Cannon and George B. Cannon against Lindoff A. Bassett. From verdicts for plaintiffs, defendant excepts. Exceptions overruled.

J. J. MacCarthy, of Worcester, for plaintiffs.

D. F. Gay, of Worcester, for defendant.

WAIT, J.

The plaintiffs, traveling in an automobile driven by the plaintiff George B. Cannon, were ascending a hill in Brookfield on the route to Boston when a car driven by a servant of the defendant came into the road from their right at some distance ahead of them and preceded them up the hill. The traveled surface of the road was about 24 feet wide. It was bounded on the right by a steep bank rising immediately from the right-hand edge to a height of 5 or 6 feet. On this bank, hidden from the roadway, was a driveway to a house on the right, which came into the road at a sharp, acute angle. The driver of the defendant's car purposed to enter this driveway, and to do so was obliged to swing to his left beyond the middle of the road, and then proceed sharply to his right across the road with sufficient power to overcome a steep incline in the driveway, where it descended from the level of the top of the bank to that of the road. The plaintiffs drew nearer the car as they followed it. When it was some 30 feet ahead of them and from 30 to 50 feet from the junction of road and driveway, it swung to its left as though to stop on the left-hand of the road or to enter a driveway on the left, leaving an unobstructed roadway ahead of them. They kept on in a straight line in the open way to go by the car at the left and were about abreast of it when it swung to its right, came across the road and collided with their car. There was contradicted evidence that no signal was given from the leading car. The driver testified that he looked behind toward his left, but not to the right, and saw no car before turning. The plaintiffs testified that they sounded, their horn. Whether the defendant's car plunged headlong into the side of the plaintiffs' car near its middle, or the plaintiffs' ‘side-swiped’ the defendant's car beginning at the right rear fender, was in dispute. There is no dispute that the plaintiffs at no time turned to their left to go around to the left of the defendant's car; they swung sharply to their right to avoid the collision. At no time were they to the left of the middle of the road.

[1] There is nothing which, as matter of law, establishes that the defendant's servant was free from carelessness, or that the plaintiffs contributed to their injury by lack of due care. There is enough to justify findings of negligence and of due care. The failure to observe G. L. c. 89, § 2, which provides that ‘the driver of a vehicle passing another vehicle traveling in...