Durdle v. Baron
| Citation | 104 N.E.2d 421,328 Mass. 460 |
| Parties | DURDLE v. BARON et al. |
| Decision Date | 03 March 1952 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
M. L. Rubin, Boston, for the plaintiff.
D. H. Fulton, Boston, for the defendants.
Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.
These are exceptions to the refusal of a request to rule that the evidence would not warrant a verdict in excess of $2,000, the minimum damages under the death statute then in effect, and to the denial of a motion to direct a verdict for the defendants in an action to recover damages for the death and conscious suffering of the plaintiff's intestate which were alleged to have resulted from an accident which happened on April 16, 1947.
There was evidence that the defendants' employee was pushing a four wheel truck, which was about thirty inches wide and six feet long and had 'iron bars all around,' from an elevator onto the sidewalk. The truck was loaded so high with clothing that the employee who was pushing it could not see ahead. The intestate who was walking along the sidewalk saw the truck which suddenly turned to its right as he started to pass it. He was unable to get out of the way in time. The truck struck him, knocking him down and inflicting various injuries. The employee did not see the intestate at any time until after the accident. The jury could find that the accident resulted from the negligence of the employee and that the intestate was not guilty of contributory negligence. Moran v. Plymouth Rubber Co. Mutual Benefit Association, 307 Mass. 444, 30 N.E.2d 238; Cunningham v. Boston & Maine Railroad, 309 Mass. 215, 34 N.E.2d 697. He died on the afternoon of July 5, 1947, while on his way home. The medical testimony was sufficient, if accepted, as in fact it was, by the jury, to prove that there was a causal connection between the accident and the death. Kelleher v. City of Newburyport, 227 Mass. 462, 116 N.E. 806, L.R.A.1917 F. 710; Edwards v. Warwick, 317 Mass. 573, 59 N.E.2d 194.
It has not been and could not be contended that the evidence established as matter of law any contributory negligence upon the part of the decedent. It therefore follows that the evidence was sufficient to warrant the jury in finding that the plaintiff had proved the liability of the defendants, and the jury were required to return a verdict for the plaintiff for at least $2,000 and not more than $15,000 in accordance with the amount of the pecuniary loss in excess of $2,000 shown to have been sustained by the statutory beneficiaries by reason of the death of the decedent. G.L.(Ter.Ed.) c. 229, § 2, as appearing in St.1947, c. 506, § 1A. 1 Beatty v. Fox, 328 Mass. ----, 102 N.E.2d 781. Consequently, there was no error in the denial of the motion to direct a verdict for the defendants.
The defendants next contend that the damages under count 1 for the death must be limited to $2,000. They requested the judge to rule that 'If this case is to be submitted to the jury under count 1 of the declaration, there is no evidence which would warrant the jury in finding damages exceeding the minimum provided by St.1947, c. 506, § 1A.' The judge denied the request. The jury returned a verdict of $4,700 on this count. It could not be known what verdict the jury might return when the ruling was made. The correctness of the ruling must be determined as of the time it was made. For instance, there was no error if at that time the evidence was sufficient to show that the persons for whose benefit the action was brought had sustained a pecuniary loss amounting to $2,001 because of the death of the decedent. Our inquiry is to determine whether there was evidence showing a loss for any amount in excess of $2,000.
The intestate, who was sixty-eight years of age at the time of his death, had retired in 1945 'through having reached the age limit of 65.' He was then in good health. He then gave up his own orchestra, but he intended to...
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...have enjoyed, absent the wrongful conduct of the defendant that caused the decedent's untimely death. See, e.g., Durdle v. Baron, 328 Mass. 460, 463, 104 N.E.2d 421 (1952); Lane v. Meserve, 20 Mass. App.Ct. 659, 666, 482 N.E.2d 530 (1985). In a loss of chance wrongful death case, the logic ......
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