Conrad v. Mazman

• Decision Date: 02 July 1934
• Citation: 287 Mass. 229,191 N.E. 765
• Parties: CONRAD v. MAZMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 229

191 N.E. 765

CONRAD

v.MAZMAN.

Supreme Judicial Court of Massachusetts, Middlesex.

July 2, 1934.

Exceptions from Superior Court, Middlesex County; J. M. Gibbs, Judge.

Action of tort by Peter Conrad, administrator, against Gregory Mazman, sometimes called Ovagin G. Mazmanian. Verdict for plaintiff in the sum of $8,000, and both parties bring exceptions.

Plaintiff's exceptions overruled, and defendant's exceptions sustained.

C. F. Gadsby, of Cambridge, for plaintiff.

F. J. Carney and W. J. Killion, both of Boston, for defendant.

FIELD, Justice.

This is an action of tort. The declaration is in two counts, one for the death and the other for the conscious suffering of the plaintiff's intestate, who was run down by the defendant's motor truck while crossing a street in Cambridge. The defendant's motion for a directed verdict was denied and there was a verdict for the plaintiff on both counts. The case comes before us on the defendant's exceptions to the denial of his motion for a directed verdict, to the refusal of the judge to instruct the jury as requested, and to certain portions of the charge, and on the plaintiff's exceptions to the denial of his motion to dismiss the defendant's bill of exceptions and to the refusal of the judge to rule as requested.

First. The defendant's motion for a directed verdict was denied rightly.

There was evidence that the defendant's motor truck, while being operated by an employee of the defendant on a street in Cambridge which was slightly down grade and twenty-nine feet wide from curb to curb, on November 27, 1929, between 6:30 and 6:40 p. m., struck and killed the plaintiff's intestate, a girl sixteen years old, in the street as she was crossing it diagonally from the left to the right of the course of the truck.

1. The evidence warranted a finding that the operator of the truck was negligent.

There was evidence that the truck had stopped at a traffic light about three or four hundred feet before it reached the place of the accident-and no evidence to the contrary-that after it started its speed continued to increase until it was travelling fifteen or twenty miles an hour, and that the district was thickly settled.

The operator testified that the girl was two feet from him before he saw her, that ‘he could see her body from her waist up,’ that he didn't notice whether she was walking or running, that when he first saw her she was ten to twelve feet from the right of the curb-a little to the right of the middle of the street-and about eight feet from a parked automobile on the left of the street, that on seeing her he put on his brakes and turned to the left to avoid striking her because he thought that he could not pass between her and the curb at the right, that the girl was struck by the middle or right of the front of the truck and was thrown four or five feet, that the truck stopped about two feet after striking her, and that he later backed it to the left side of the street. He ‘didn't notice whether or not there were any other machines at that time coming in the opposite direction.’ The operator's brother, riding with him on the seat of the truck, testified that he saw the girl when she was three or four feet away, that the truck did not run over her, and that her body was about five or six feet ahead of the truck when it stopped.

There was testimony that after the accident the body of the girl was about in the middle of the street, that the accident took place about opposite a tree which jutted out twenty-two inches from the sidewalk into the gutter, that there were three or four automobiles parked at the left of the street, that the left side of one of them, which was in front of the tree, was ten feet from the curb, that the girl came from the ‘direction from behind’ that automobile, and that the other automobiles were parked both in back and in front of that automobile. But it could have been found on other testimony that no motor vehicles-except the defendant's truck after the accident-were parked at the left of the street. It could have been found that the street was well lighted at the place of the accident, and that the lights of the truck were on at the time.

There was testimony that when about forty feet back of the place of the accident the operator saw two children leaving the sidewalk at the right, blew his horn, turned the truck a little to the left and watched them until they went back to the sidewalk, when he looked in front of him and saw the girl.

The jury could have inferred that the truck was well under the control of the operator when he saw the girl and that if his attention had not been diverted from the street in front of him he could have seen her soon enough to avoid striking her, and they could have disbelieved the testimony as to the reason for the diversion of his attention or found that if such diversion was necessary the operator was careless in maintaining or increasing speed while his attention was so diverted. They could have found that in the exercise of due care the operator should have seen the girl in time to avoid running her down, and that his failure to do so was causally related to the accident. See Mulroy v. Marinakis, 271 Mass. 421, 424, 171 N. E. 670;Boni v. Goldstein, 276 Mass. 372, 375, 177 N. E. 581. They were not required by the evidence to accept as the explanation of the accident that the girl came suddenly into the path of the truck in such circumstances that her presence could not reasonably be foreseen by the operator or that she could have been seen by him only for an instant. Compare Lovett v. Scott, 232 Mass. 541, 122 N. E. 646;Rizzittelli v. Vestine, 246 Mass. 391, 141 N. E. 110. Nor were the circumstances of the accident so wholly unexplained by the evidence as to leave the case barren of proof sufficient to sustain a verdict for the plaintiff. Compare Nager v. Reid, 240 Mass. 211, 133 N. E. 98.

2. It could not have been ruled as matter of law that the negligence of the plaintiff's intestate contributed to the accident. The burden of proof was on the defendant. G. L. (Ter. Ed.) c. 231, § 85. All the facts bearing on the care or lack of care of the girl were not presented by the evidence. Her presence in the street in the circumstances shown did not require a finding that she did not look to see whether a motor vehicle was approaching or that she looked carelessly. There is no evidence binding on the plaintiff, or on which he must rely for recovery, which is inconsistent as matter of law with the girl's having looked carefully or thought reasonably that she could cross the street in safety, relying, as to some extent she was entitled to do, upon the operator of the truck using reasonable care to avoid running her down. Mulroy v. Marinakis, 271 Mass. 421, 423-424, 171 N. E. 670, and cases cited; Griffin v. Feeney, 279 Mass. 602, 181 N. E. 710;Sooserian v. Town Taxi, Inc., 284 Mass.-, 191 N. E. 763.

Second. There was reversible error in the judge's charge.

1. The judge instructed the jury that it was ‘prima facie evidence of a rate of speed greater than was reasonable and proper if a car was operated in a thickly settled or business district at a rate of speed exceeding fifteen miles per hour for a distance of an eighth of a mile’ (see G. L. c. 90, § 17, since amended by St. 1931, c. 201; see, also, G. L. [Ter. Ed.] c. 90, § 17), and, subject to the defendant's exception, that it was for them ‘to say whether there is any evidence here before * * * [them] that this car was operated a such a rate of speed for the distance of an eighth of a mile.’ There was no evidence that the truck was operated at such a rate of speed for a distance of an eighth of a mile. The charge in this respect, therefore, was erroneous and prejudicial to the defendant. London v. Bay State Street Railway, 231 Mass. 480, 486, 121 N. E. 394;Walsh v. Gillis, 276 Mass. 93, 97, 176 N. E. 802. The judge, however, properly refused to instruct the jury as requested by the defendant that there was ‘no evidence that the defendant's car was operated at an excessive speed at the time of the accident,’ because, if for no other reason, the speed might have been found to be excessive in view of the testimony that the operator's attention was diverted from the street in front of the truck.

2. There was evidence that the...