Commonwealth v. Bleakney

• Decision Date: 26 January 1932
• Citation: 278 Mass. 198
• Parties: COMMONWEALTH v. MARGARET J. BLEAKNEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Mass. 198

COMMONWEALTH v. MARGARET J. BLEAKNEY.

Supreme Judicial Court of Massachusetts, Bristol.

January 26, 1932

October 26, 1931.

Present: RUGG, C.

J., CROSBY, WAIT SANDERSON, & FIELD, JJ.

Motor Vehicle Operation. Practice, Criminal, Exceptions. Words "Knowingly colliding."

G.L.c. 90, Section 24, as amended by St. 1928, c. 281, Section 1, does not apply to the operator of a motor vehicle, against which, while it is stopped upon a public way, another person thoughtlessly or carelessly falls or walks and is injured in such circumstances that the vehicle's position is a mere condition and not a cause of the collision and the operator is a mere passive participant and not an actor in the collision. At the trial of a complaint charging the defendant with a violation of

G.L.c. 90, Section 24, as amended by St. 1928, c. 281, Section 1, there was evidence for the Commonwealth that a pedestrian upon a public way was struck and injured by a moving automobile operated by the defendant; and that the defendant knew of the impact and drove away without giving the information specified in the statute. There was evidence for the defendant that the automobile was stopped in traffic; and that the pedestrian while walking across the street from the defendant's right and trying to attract the attention of the motorman of a street car on a track to the left of the defendant, walked into the side of the automobile. The defendant asked for a ruling that "A person does not collide with or otherwise cause an injury . . . if the person who claims to be injured runs against an auto which is standing still in traffic."

Such ruling was refused and the judge instructed the jury that, under the statute, it made no difference whether the defendant's automobile were moving or stopped, if, to the defendant's knowledge, there was "contact and impact" between it and the pedestrian. The defendant was found guilty and alleged exceptions. Held, that

(1) The defendant's evidence, if believed, disclosed a situation to which the statute did not apply, and to which the defendant's request for ruling called the judge's attention;

(2) In the circumstances, the charge was erroneous in not adequately stating the law applicable to the evidence, and the error was prejudicial to the defendant;

(3) The defendant's exceptions were sustained.

COMPLAINT, received and sworn to in the Second District Court of Bristol on May 3, 1929, charging the defendant with a violation of G.L.c. 90, Section 24, as amended by St. 1928, c. 281, Section 1.

Upon appeal to the Superior Court, the complaint was tried before T.J. Hammond, J. Material evidence and portions of the charge to the jury are stated in the opinion.

Rulings asked for by the defendant and refused by the judge were as follows:

"3. `Colliding with' as used in the statute contemplates to strike or crash against."

"5. A person does not collide with or otherwise cause an injury, or strike, or crash against, or produce or bring about an injury, if the person who claims to be injured runs against an auto which is standing still in traffic.

"6. The statute as it applies to this [case] requires a situation where the operator runs into or against some person."

"9. If the defendant honestly and with good reason believed she did not collide with the person claimed to be injured, but that the latter ran into the defendant's car while running across the street, without looking, to catch a receding trolley car, then the defendant is not guilty."

The defendant was found guilty and alleged exceptions. A.C. Webber, (D. Silverstein with him,) for the defendant.

F.E. Smith, Assistant District Attorney, (W.C. Crossley, District Attorney, with him,) for the Commonwealth.

BY THE COURT.

The subjoined opinion was prepared by Mr. Justice Carroll, and was adopted after his death as the opinion of the court.

The defendant was found guilty in the Superior Court of violating G.L.c. 90, Section 24, as amended by St. 1928, c. 281, Section 1. This statute, so far as here material, provides that "Any person who operates a motor vehicle upon any way, or in any place to which the public has a right of access, and who, without stopping and making known his name, residence and the number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person, shall be punished by imprisonment for not less than two months nor more than two years."

The offence is alleged to have occurred on North Main Street, Fall River. It happened about thirty minutes after two o'clock on the afternoon of April 29, 1929. North Main Street runs through a thickly settled section, and is a main route from Fall River to Providence, Rhode Island. The center of the street is occupied by two lines of car tracks. The evidence for the Commonwealth was that a Mrs. Holbrook while walking across North Main Street from the easterly side to a street car moving southerly "on the further track" was struck by "the right front mudguard of the defendant's" motor vehicle; that the defendant was moving slowly in the car tracks "and proceeded two feet after the contact."

The defendant testified that she was operating her motor vehicle "on the right street car tracks, northerly"; that a street car in front of her came to a full stop; that she stopped her vehicle; that "her engine was still going"; that while waiting for the street car "to go ahead" she noticed Mrs. Holbrook "leave the right hand sidewalk with her arm raised looking upward trying to attract the attention of the motorman on a street car which was going southerly on the opposite track"; that Mrs. Holbrook walked into the side of her automobile; that she at once alighted from her car and spoke to Mrs. Holbrook and walked with her to the sidewalk and asked her, "Do you want my name?" and Mrs. Holbrook said "No"; that the automobiles in the street "were all blowing their horns"; that she then moved her vehicle from the traffic and came "back to where she had left Mrs. Holbrook . . . that . . . [she was] nowhere to be seen."

A witness operating his motor vehicle immediately in the rear of the defendant's testified that the street car in front of the defendant stopped all traffic; that while the traffic was stopped he saw Mrs. Holbrook crossing the street with her hand raised; that while "walking in that position she came in contact with the right side of the defendant's automobile which at that time was at a full stop."

The Commonwealth introduced testimony that the defendant's motor vehicle was not stopped; that she admitted "s...