Costello v. Hansen

• Decision Date: 02 April 1951
• Citation: Costello v. Hansen, 327 Mass. 264, 97 N.E.2d 738 (Mass. 1951)
• Parties: COSTELLO et al. v. HANSEN.
• Court: Supreme Judicial Court of Massachusetts

Page 738

97 N.E.2d 738

327 Mass. 264

COSTELLO et al. v. HANSEN.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued March 6, 1951.

Decided April 2, 1951.

R. L. Bates, Hingham, for plaintiff.

M. A. Darling, Concord, for defendant.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and COUNIHAN, JJ.

LUMMUS, Justice.

Counsel for the plaintiffs, in opening to the jury their action of tort for negligence against the defendant, stated in substance the following. The plaintiffs, John J. Costello, Junior, and his wife and baby, were riding on February 8, 1948, on a way in Canton, following the automobile of the defendant. The road had ruts with a mound of snow and ice between them from six to eight inches higher than the ruts. The defendant was travelling at about twenty miles an hour, and his automobile was swaying and going from side to side in the ruts. At a curve the defendant's automobile went out of the ruts and up on the mound, spun over and turned around, came back and struck the plaintiffs' automobile, injuring it and the three plaintiffs.

At the conclusion of the opening, the judge, having been told by counsel for the plaintiffs that the evidence would show no more than he stated in the opening, directed a verdict for the defendant, subject to the exceptions of the plaintiffs.

It is settled that a verdict for a defendant may be ordered upon the plaintiff's opening, if it appears that the plaintiff's case has been fully stated. Mulvaney v. City of Worchester, 293 Mass. 32, 199 N.E. 405; Cahalane v. Dennery, 298 Mass. 34, 9 N.E.2d 396; Passler v. Mowbray, 318 Mass. 231, 61 N.E.2d 120. But the power to direct a verdict on the opening should be exercised with caution. Carbone v. Trustees of New York, New Haven & Hartford Railroad, 320 Mass. 710, 713-714, 71 N.E.2d 403. In Douglas v. Whittaker, 324 Mass. 398, 400, 86 N.E.2d 916, 918, this court said, 'Cases should be decided upon sworn evidence rather than upon an anticipatory statement of counsel which might bear little resemblance to the available evidence. In instances involving close questions, the safer course is to hear the evidence.'

The defendant relies on the statement contained in a number of our decisions that 'the mere skidding of a motor vehicle, unexplained, is not evidence of negligence.' Sherwood v. Radovsky, 317 Mass. 307, 308, 57 N.E.2d 912, 913. But it is equally well settled that skidding may be caused or accompanied by negligence upon which liability may be predicated....