Crowe v. Ward

• Decision Date: 13 February 1973
• Citation: 292 N.E.2d 716,363 Mass. 85
• Parties: , 57 A.L.R.3d 707 Michael J. CROWE v. Alvin E. WARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 716

292 N.E.2d 716

363 Mass. 85, 57 A.L.R.3d 707

Michael J. CROWE v. Alvin E. WARD.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 8, 1972.

Decided Feb. 13, 1973.

Matthew T. Connolly, Boston, for plaintiff.

Francis C. McGrath, Wakefield, for defendant.

Before TAURO, C.J., and REARDON, HENNESSEY, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

In an action of tort for personal injuries arising out of a collision in Jamaica Plain between a motor scooter driven by the plaintiff and a car driven by the defendant, the plaintiff alleged negligence on the part of the defendant, and the defendant answered with denials and an affirmative defence charging the plaintiff with contributory negligence. The defendant removed the action from the Municipal Court of the Dorchester District to the Superior Court and it was there tried before a jury who returned a verdict for the defendant. The case is here on the plaintiff's substitute bill of exceptions. The plaintiff presses two exceptions: one to the judge's exclusion of an official weather report, and the second to the judge's charge as to the duty of the operator of a vehicle nearing an intersection.

On August 31, 1966, between 4:15 P.M. and 4:30 P.M., the plaintiff on a motor scooter was traveling in a northerly direction on Hyde Park Avenue approaching an intersection with Southbourne Road, while the defendant in a car was approaching the intersection on the opposite side of the avenue traveling south. In that vicinity the avenue is a straight, divided, four-lane highway; there is a gap in the dividing island at the intersection.

The plaintiff testified: When he had fifty to seventy feet still to go to the intersection, he observed the defendant's car pulling to its right and beginning to turn left into the intersection; the car was then about thirty feet from the intersection. The plaintiff reacted to this maneuver by starting to slow down. The car entered the intersection before the motor scooter did. Twenty-five feet across the plaintiff's lane the defendant's car collided with the motor scooter's left side, throwing the plaintiff onto Southbourne Road. The plaintiff testified that it was a clear day with sunshine and the road was clear and dry.

Called by the plaintiff, the defendant testified: It had been raining that day, but the rain had stopped; there was light rain and the roads were damp and wet. In his answers to interrogatories referred to in the bill of exceptions the defendant had said rather more emphatically that it rained that day, and the plaintiff was driving too fast on a wet pavement. The defendant said he could see about 150 feet in a southerly or northerly direction from the intersection. He did not look to the opposite side of the avenue until he made his turn to the left. As to when he saw the plaintiff, his testimony vacillated: 'he did not see the plaintiff until he turned'; again, 'he did not see the plaintiff until the time of impact'; yet again (under cross-examination by his own counsel), he said that on the dividing strip just south of the intersection there was a traffic light with a waist-high three-foot square sign, and the sign was directly in front of him and 'for a moment or so he wouldn't be able to see anything coming down Hyde Park Avenue.'

This was the plaintiff's case to which he sought unsuccessfully to add the weather report. The defendant rested on the plaintiff's case.

The document offered was a duly certified copy of the digest of 'local climatological data' for the month of August, 1966, gathered at Logan International Airport in Boston under the auspices of the United States Department of Commerce. The data for August 31 confirmed that at Logan it was a dry, warm, clear day with sunshine. Some of the details of the report are set out in the margin. ¹

The bill of exceptions does not disclose what reason was urged by the defendant for objecting to the admission of the report, nor are we given the judge's reason for sustaining the objection. Any hearsay difficulties were obviated since the report was an official record of facts made by public officers in the performance of their duty. Commonwealth v. Dorr, 216 Mass. 314, 319, 103 N.E. 902; Jewett v. Boston Elev. Ry., 219 Mass. 528, 530--531, 107 N.E. 433. See G.L. c. 233, § 78 (entries in books of account), applied in Sawyer & Co. v. Southern Pac. Co., 354 Mass. 481, 238 N.E.2d 357. The defendant complains in his brief that no evidence was submitted as to the distance between the Logan station and the place of the accident, but judicial notice could be taken of this distance. Hughes, Evidence, § 79. It is about seven and one-quarter miles. The defendant also suggests in his brief that the report was irrelevant, by which he seems to mean that observations at Logan cannot tend to prove conditions at a locus in Jamaica Plain. But as a generalization that is inaccurate. If a heavy, steady downpour under lowered skies was observed at Logan, it would be quite probable, though not certain, that rain was also falling seven miles away, with no barrier between. On the other hand, the fact of a wind velocity in a given direction at Logan might be of little practical use in establishing velocity or direction even a short distance away in a sheltered side street. So relevance in the sense of probative value is, not surprisingly, a case by case question. Our present facts would be expected to lie somewhere between the hypothetical situations mentioned: the dry condition at Logan betokened a similar condition at Jamaica Plain but a shower there was not precluded.

The decided cases on admission of weather reports as proof of conditions at some remove of space or time from the reported observations generally go off on the issue whether the reports have enough probative value to be worth consideration. It is apparent that in some situations the reports may be not only admissible but conclusive or nearly so. Wadlund v. Hartford, 139 Conn. 169, 173, 91 A.2d 10. In many other situations the reports, though not so compelling, have been admitted, leaving the question of their weight to the trier. Harris v. H. G. Smithy Co., Inc., 139 U.S.App.D.C. 65, 429 F.2d 744, 746; Lessow v. Sherry, 133 Conn. 350, 353--354, 51 A.2d 49; Tenney v. Pleasant Realty Corp., 136 Conn. 325, 328--329, 70 A.2d 138; Smith v. Reid, 136 So.2d 440, 442 (Ct.App.La.); Ward v. Pittsburgh, 353 Pa. 156, 161--162, 44 A.2d 553; Pitchfork Land & Cattle Co. v. King, 335 S.W.2d 624, 630--631 (Tex.Civ.App.); Riddle v. Baltimore & Ohio R.R., 137 W.Va. 733, 747--748, 73 S.E.2d 793. See Pierce v. Worcester & Nashua R.R., 105 Mass. 199, 203; Nelson v. Old Colony St. Ry., 208 Mass. 159, 161, 94 N.E. 313. In a number of cases the judges could not be held at fault either for admitting or rejecting the reports; the matter has been treated as one of discretion. Commonwealth v. Bonomi, 335 Mass. 327, 353, 140 N.E.2d 140; Widder v. New York, Chicago & St. Louis R.R., 235 F.2d 752, 753 (3d Cir.). See Phillips v. Haddock, 163 Mass. 201, 202, 39 N.E. 1015; Ducharme v. Holyoke St. Ry., 203 Mass. 384, 393--395, 89 N.E. 561. ² And in still other cases the reports have been excluded as not sufficiently germane. Pulvari v. Greyhound Corp., 126 U.S.App.D.C. 146, 375 F.2d 322, 323 (Fahy, J. dissenting on the point). Madisonville v. Nisbet's Admr., 270 Ky. 248, 254, 109 S.W.2d 593. See, generally, Annotation, 34 A.L.R.2d 1249. ³ The divergence is to be expected. We think the present case falls into the second category and the Logan report should have been admitted. That the report does not point unwaveringly to the weather at the place of the accident is not a reason for excluding it. '(T)he most acceptable test of relevancy is the question, does the evidence offered render the desired inference more probable than it would be without the evidence?' (emphasis in original). McCormick, Evidence (2d ed.) § 185, p. 437, and, generally, § 185. See Rules of Evidence for United States Courts and Magistrates (as approved by U.S. Supr. Ct. November 20, 1972), Rule 401. We are influenced by the...