Caron v. Lynn Sand & Stone Co.
| Decision Date | 13 February 1930 |
| Citation | 270 Mass. 340,170 N.E. 77 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | CARON v. LYNN SAND & STONE CO. SPACONE v. SAME. |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Essex County; David F. Dillon, Judge.
Actions by Frank Caron and by Carmine Spacone against the Lynn Sand & Stone Company. Verdict for defendant, and plaintiffs bring exceptions. Exceptions sustained.F. J. Cloutman, of Salem, and J. F. Doyle, of Lynn, for plaintiff caron.
W. H. McSweeney, M. J. McSweeney, and J. A. Murphy, all of Salem, for plaintiff Spacone.
W. E. & R. L. Sisk and J. W. Santry, all of Lynn, for defendant.
These are two actions to recover for personal injuries received by the plaintiffs while riding in an automobile driven by one Smith, which collided with a truck owned by the defendant and operated by its agent. It was conceded at the trial that the driver of the truck was acting within the scope of his employment at the time of the accident. The truck weighed thirteen thousand, eight hundred pounds, was six to eight feet wide and twenty-one feet long. The accident occurred on October 27, 1926, at about 12:45 P. M., at or near the intersection of Danvers Road and Essex Street, public ways in Swampscott. It is stated in the bill of exceptions in each case that there was evidence for the jury that the driver of the automobile was negligent, and that ‘On all the evidence the jury might have found either that the driver of the defendant's truck was negligent or that he was not negligent.’ The actions were tried together and the jury returned a verdict for the defendant in each case. They are before us on exceptions taken by each plaintiff to the refusal of the trial judge to grant certain rulings requested, and to his refusal to change or modify certain instructions given, and to other instructions.
In both cases there was evidence from the defendant's driver that he was proceeding towards Salem on Essex Street in Swampscott; that he first noticed the automobile driven by Smith coming in the direction of Lynn from Salem, when it was about three hundred and fifty feet back from the intersection of Danvers Road and Essex Street; that it was proceeding at a rate of thirty-five to forty miles an hour; and that he did not notice its speed slacken. The plaintiffs introduced evidence tending to show that the truck suddenly turned in front of the automobile in an apparent effort to enter Danvers Road; that Smith, whose automobile was on the right of the truck, turned to the left to avoid a collision and the driver of the truck at the same time turned ‘sharply’ to his right as a result of which the collision occurred. The defendant introduced evidence tending to show that the truck remained in a proper position all the time, and that Smith drove his automobile against the truck as it was moving slowly on Essex Street.
It is agreed that as a result of the collision both plaintiffs sustained severe bodily injuries. The automobile was a five passenger sedan and Caron was seated on the front seat at the right of Smith; Spacone, the plaintiff in the second case, was seated in the rear.
Caron testified that he had known Smith for about three months before the accident and had business with him in Salem during the forenoon of the day of the accident; that the business was finished before he started to ride with him to Swampscott; that Smith picked up Spacone on the way to Swampscott, and that neither Smith nor Spacone was doing any business for him; that he never had ridden with Smith before; that as they approached the place where the accident occurred they were travelling about eighteen or twenty miles an hour; that no one in the car was in a hurry as far as he knew; that he first noticed the truck when Smith's automobile was about sixty feet from Danvers Road, and the truck about two hundred feet back from that road, ‘halfway down the hill from the Bridge and * * * going fast, [with] the rear-end * * * bouncing from side to side’; that it ‘was coming zigzag down the street * * * in the middle of the tracks; [that] the truck was going thirty miles an hour when * * * [he] first noticed it; and [that] * * * he did not remember that * * * [it] diminished its speed before the accident except that when * * * [it] turned to the left it was going about eighteen miles an hour; and then the truck turned to the right.’
The defendant, on the other hand, introduced evidence tending to show that the truck was proceeding along the right-hand side of Essex Street in the direction of Salem at a speed of six to eight miles an hour; that at the time of the collision its speed had been reduced to four miles an hour, and that it had then nearly come to a stop. Photographs taken immediately after the collision and before the position of the cars had been changed were admitted in evidence, and showed the truck on the extreme right side of Essex Street looking in the direction of Salem. There was a governor on the truck which limited its speed to fifteen miles an hour. Upon the conflicting evidence, the question, whether the collision was due to negligence of the driver of the truck was for the jury.
Caron further testified that he was building a house for Smith in Marblehead but did not intend to go there at the time of the accident; that when he first noticed the truck it was swaying from side to side; that he did not know there was going to be an accident; ‘that he did not say a word or do a thing; that Smith was driving about eighteen miles an hour at the time of the accident; that it happened so quickly that he did not have a chance to say anything.’
Smith testified that at the time of the accident he was taking Caron to a house in Swampscott which Caron was constructing; that he was not on his way to Boston, he was going to take Caron to Swampscott and then he and Spacone were going back to Marblehead; that any business he had with Caron was concluded in Salem before they started for Swampscott, but he did not recall what business he had with Caron that day. There was evidence that after the accident Smith said that he was driving Spacone to Boston, and from there the latter intended to go to New York. This statement was made in the presence of Spacone and was not denied by him at that time.
Spacone testified that Caron was in the automobile when he got in; that all three were going to Swampscott, taking Caron there, and then Smith and he were going to Marblehead where Spacone was building houses; that he did not do or say anything when he saw the truck approaching. Caron, Spacone and Smith were all carpenters and contractors.
At the close of the evidence, each plaintiff requested the...
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