Duff v. Webster

• Decision Date: 30 November 1943
• Citation: 51 N.E.2d 957,315 Mass. 102
• Parties: SAMUEL DUFF v. FRANK C. WEBSTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 102

51 N.E.2d 957

SAMUEL DUFF v. FRANK C. WEBSTER.

Supreme Judicial Court of Massachusetts, Plymouth.

November 30, 1943

November 4, 1943.

Present: FIELD, C.

J., LUMMUS, QUA COX, & RONAN, JJ.

Negligence Contributory, Use of way. Practice, Civil, Charge to jury Exceptions: whether error shown. Error, Whether error shown.

A finding of contributory negligence on the part of a plaintiff was not required by evidence that he had got out of an automobile that had been stalled in a snow drift on its left side of the road in the midst of a thick, driving snow storm, and, after assisting in an attempt to move the automobile, had walked along its right side to the front of it to go for help in the neighborhood without knowing that the automobile was on the wrong side of the road, and was there struck by an automobile of the defendant which the plaintiff did not see approaching from the opposite direction on its proper side of the road.

An exception to a portion of a charge to a jury will not be sustained where after objection made, the judge attempts to correct or explain what he has said and the excepting party makes no further objection.

TORT. Writ in the District Court of Brockton dated April 8, 1940. On removal to the Superior Court the case was tried before Good, J. In this court it was submitted on briefs.

R. J. Coffin & T.

H. Mahony, for the defendant.

E. G. Townes & E.

H. Stevens, for the plaintiff.

QUA, J. On February 14, 1940, in a snow storm, the plaintiff, while on the highway, was struck and injured by an automobile driven by the defendant. After a verdict for the plaintiff, the defendant insists that the plaintiff was contributorily negligent as a matter of law, and that there was an error in the charge.

Under G. L. (Ter Ed.) c. 231, Section 85, contributory negligence is an "affirmative defence" to be "proved by the defendant." It follows that in cases to which this statute applies, on the issue of contributory negligence, the circumstances not covered by evidence are assumed to have been favorable to the plaintiff. Mercier v. Union Street Railway, 230 Mass. 397, 403. King v. Weitzman, 267 Mass. 447 , 449.

Dirsa v. Hamilton, 280 Mass. 482 , 487. Birch v. Strout, 303 Mass. 28 , 30-31. The plaintiff makes out a case for the jury "by proving injury and damage due to the negligence of the defendant" (Brown v. Henderson, 285 Mass. 192, 195), unless "facts which are undisputed or indisputable" or "evidence by which the plaintiff is bound" shows that contributory negligence is the only rational inference. Duggan v. Bay State Street Railway, 230 Mass. 370 , 379. The plaintiff is bound by his own testimony adverse to him only in so far as it is n ot contradicted by favorable evidence from some other source. Whiteacre v. Boston Elevated Railway, 241 Mass. 163. Gleason v. Mann, 312 Mass. 420 , 423. He is not bound as matter of law by the testimony of witnesses other than himself, even though they have been called by him, and he has the benefit of all favorable evidence from any source. United States Fidelity & Guaranty Co. v. English Construction Co. 303 Mass. 105 , 110-111. Lydon v. Boston Elevated Railway, 309 Mass. 205 , 206-207, and cases cited.

With these settled principles in mind, we summarize the evidence which in our opinion required the submission to the jury of the issue of contributory negligence. The plaintiff had been a passenger in an automobile of one Haviland on a trip from Hudson to Brockton. He testified that it was snowing and blowing pretty hard; that the snow was blowing around every way, drifting across the road, and piling up in drifts; that just before the accident the Haviland automobile became stalled in the snow and was headed north; that in places "you couldn't" distinguish the sidewalk from the road because of the snow, but other places were bare; that the plaintiff could not see on which side of the road the Haviland automobile was stalled, because there was so much snow; that the men, including the plaintiff, got out and tried to push the automobile "to see if they could get it going"; that the plaintiff was in the road on the right side of the automobile "for some time" and then started to go to a store a short distance to the north to get assistance; that he walked along the right side of the automobile, and...