Capano v. Melchionno

Decision Date01 April 1937
Citation7 N.E.2d 593,297 Mass. 1
PartiesCAPANO v. MELCHIONNO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

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

Action of tort by Vincent Capano, administrator of the estate of Paul Capano, deceased, against Antonio Melchionno. There were verdicts for plaintiff in the sum of $3,986 on counts for death and $561.80 on counts for conscious suffering. On exceptions saved by defendant, and on petition by defendant to establish truth of exceptions.

Exceptions overruled, and petition dismissed.Edward M. Dangel and L. E. Sherry, both of Boston, for plaintiff.

J. J. Mulcahy and M. K. Campbell, both of Boston, for defendant-petitioner.

RUGG, Chief Justice.

I. The bill of exceptions will be considered first.

This is an action of tort by the administrator of the estate of Paul Capano, who at the time of his death on August 10, 1933, was about four years and eleven months of age. There were two counts in the declaration as originally filed, one to recover compensation for the death of the plaintiff's intestate, and the other to recover compensation for his conscious suffering, both alleged to have been caused by the negligent operation of a motor vehicle by the defendant on a public way in Revere in this commonwealth. The case was referred to an auditor, whose findings of fact were not to be final. The auditor found for the defendant on both counts on the ground that the defendant as a reasonably prudent man did all that he should have done, and that there was no evidence of his negligence. The case was tried to a jury. A verdict was returned in favor of the plaintiff on each count.

There was evidence tending to show these facts: The defendant, on the forenoon of a dry and warm August day, was peddling ice from a motor truck with an open express body twelve feet long and a cab. The entire length of the body of the motor truck was about nineteen to twenty feet. There were windows on both sides and in the back of the cab. It was not very difficult for the operator to look to the back of the truck out of the back window. There was a tailboard on the rear of the truck. The sides of the body were about one and one half feet high. There were no mud guards. There were four shifts forward and one in reverse. The defendant had two helpers, but he drove into George street without them. George street is about twenty-eight to thirty feet wide from fence to fence. The defendant testified that he parked his motor truck containing nine bars of ice, each weighing three hundred pounds, so that its side was about a foot to a foot and a half from and parallel with, the sidewalk, and its cab was in front of the house where the plaintiff's intestate lived. The sidewalk was made partly of concrete and partly of dirt. There was no curbstone, but in place of it a dirt shoulder which sloped into a dirt gutter. There were children nearby when the defendant stopped his motor vehicle and went into the house. When he returned a moment or two later, there were five or six children ‘hanging on the back of his truck.’ He could not recognize any of them. They were five to seven years old. He gave each of them a piece of ice and pushed them onto the sidewalk, and they were all up against the fence * * * and then he walked around the truck and got into it on the side * * * and after he gave the children the ice he looked all around to see if there was anybody else. * * * The children were all fairly small,’ five to seven, and he knew that he ought to be more or less careful with children of that size. He got into the truck from the left side and then looked out the rear window, ‘and he saw a pair of hands hanging on the tailboard; he hollered ‘Get out of there’ and the hands left the truck and he started to go.' But he looked around to the back before he started to go. They were very small hands. They were on the platform of the truck as if reaching for a piece of ice. When he saw these hands, he did not know whether it was one of the children who had moved from his place near the fence, or not. He did not get out of the truck to see what happened to the child, and did not ‘offer to return to go back to the rear of the truck again.’ ‘Then after seeing the hands and telling them to get off, he put the truck is first speed and started going; he went ahead about two feet and felt the right rear wheel go into the air; and then he went about the length of the truck and he heard the kids hollering and thought he had dropped some ice and stopped the truck and got out and walked to the back of the truck and saw a boy lying in the street.’ As he was sitting in the cab, ‘in the way he was moving he could not see anything to indicate whether a child was between the right rear wheels. * * * He doesn't know how the accident happened or how the boy got hurt; that he never claimed he didn't hurt the boy with his truck.’ At no time did he drive so that the rear tire of the truck went up on the sidewalk. He testified further: ‘I wasn't going to bother with kids; I had work to do.’ He did not think that any of the children would return to his truck; but he looked around to the back before he started. He could see the left side of the truck from the window, but could not see the right side. In reply to the question, ‘didn't it occur to you * * * that with small children on a sidewalk that was not divided by a curbstone, right near the right hand side of the truck,’ where you could not see, ‘didn't it occur to you that you ought to have gotten down from the truck so as to be sure that everything was all right on your right hand side before you started?’ the defendant replied: ‘Well, if I had to do that I should be doing it all day long.’

The testimony of the mother of the interstate was in substance that, with her husband and seven children, the oldest of whom was eleven years old, she lived on the second floor of the house on George street at which the defendant stopped his truck. On the morning of August 10, she was not feeling well and there was a late breakfast. The intestate and all the other children were left in the kitchen in charge of the two oldest while she went into a bedroom. There was only one door in the kitchen. There was a small lock on that door and it was fastened. In about two or three minutes after leaving the kitchen, she heard a scream and on returning found the two oldest and the youngest in the kitchen and that the others had run outside. The intestate was about the right size for his age, had always been well, and was very smart. She did not like to have him go on the street, or even sit on the piazza, unless his oldest brother or sister was with him. She went out and saw the truck. ‘The right rear wheels were about a foot from the street on the sidewalk whereas the front wheels were in the street.’ ‘All she saw were stains of blood on the sidewalk and the marks of automobile wheels; that the whole sidewalk was 3 or 4 feet wide; the stains of blood were about ten feet from the steps * * * then continued to the front of the house and up over the steps; the marks were about in the middle of the sidewalk; the marks of automobile tires were on the concrete sidewalk; they were tire marks; that they were not single; the marks were on the sidewalk from the rear wheels of the truck and she saw them when she came out; the motor of the truck was in front of the house * * * the marks were in back of the front tires; it was in front of the rear tires; there was more than one spot of blood on the sidewalk; she didn't court the spots but they were 10 feet from the steps maybe less; the sidewalk in front of the house was concrete * * * where the bloodspots were it was concrete, and the concrete is 3 or 4 feet wide at that point * * * the concrete comes up about 2 feet from the steps of the house; the tire marks she saw were about 9 or 10 feet; they may have been longer or shorter; that the tires went over the marks of the blood that were on the sidewalk; blood and dirt, yes; it was fresh blood.’

The evidence already narrated warranted a finding that the mother of the plaintiff's intestate was his custodian at the time and exercised due care for his safety. She was attending to her household duties, but at the same time she was looking out for the safety of the child. He was left in the kitchen. The only door leading from that room to the street was locked. The two oldest children were in immediate charge. She was in an adjoining room and solicitous for his welfare. The fact that without her knowledge he went upon the sidewalk does not show that she was careless as matter of law. Sullivan v. Boston Elevated Railway Co., 192 Mass. 37, 45, 78 N.E. 382;Linnane v. Millman, 261 Mass. 491, 494, 159 N.E. 523;Brennan v. Boston Elevated Railway Co., 261 Mass. 318, 319, 158 N.E. 670;Herd v. Boston Elevated Railway Co., 265 Mass. 125, 127, 163 N.E. 862;De Furia v. Mooney, 280 Mass. 447, 449, 182 N.E. 828;Shear v. Rogoff, 288 Mass. 357, 360, 361, 193 N.E. 63;Faircloth v. Framingham Waste Material Co., 286 Mass. 320, 323, 190 N.E. 609;Gallagher v. Johnson, 237 Mass. 455, 130 N.E. 174, 15 A.L.R. 411;Rondeau v. Kay, 282 Mass. 452, 455, 184 N.E. 926; Howlett v. Dorchester Trust Co., 256 Mass. 544, 547, 152 N.E. 895;Stachowicz v. Matera, 257 Mass. 283, 153 N.E. 547;Ayers v. Ratshesky, 213 Mass. 589, 101 N.E. 78. The case at bar on this point is distinguishable from cases like McKenna v. Andreassi (Mass.) 197 N.E. 879.

It cannot be side as matter of law that the plaintiff's intestate was incapable of exercising care for his own safety. He was intelligent, alert, healthy, and in the habit of being with many children. Collins v. South Boston Railroad, 142 Mass. 301, 313, 314, 7 N.E. 856,56 Am.Rep. 675;Stacy v. Dorchester Awning Co., Inc., 290 Mass. 356, 195 N.E. 350;McDonough v. Vozzela, 247 Mass. 552, 556, 142 N.E. 831;Camardo v. New York State Railways, 247 N.Y. 111, 159 N.E. 879. As the deceased was...

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4 cases
  • Helland v. Arland, 28526.
    • United States
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    ...the operation on a public way of a motor vehicle not legally registered. Such operation is at least evidence of negligence. Capano v. Melchionno, Mass., 7 N.E.2d 593, and cases cited. There was a verdict for the defendant. With exceptions not here material, a motor vehicle to be legally reg......
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    • April 7, 1955
    ...permit amendments of pleadings, may alter issues to be submitted to the jury * * * in order to accomplish justice.' Capano v. Melchionno, 297 Mass. 1, 15, 7 N.E.2d 593, 600. G.L.(Ter.Ed.) c. 231, § Exceptions overruled. ...
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    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • October 28, 1942

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