Dzura v. Phillips

• Citation: 175 N.E. 629,275 Mass. 283
• Parties: DZURA v. PHILLIPS (two cases).
• Decision Date: 07 April 1931
• Court: United States State Supreme Judicial Court of Massachusetts

275 Mass. 283

175 N.E. 629

DZURA

v.PHILLIPS (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

April 7, 1931.

Exceptions from Superior Court, Worcester County; John D. McLaughlin, Judge.

Actions by Satija Dzura, individually and as administratrix of her husband, Stanislaw Dzura, against John Phillips. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled.

E. A. Ryan, of Worcester, for plaintiff.

C. C. Milton, of Worcester, for defendant.

WAIT, J.

Satija Dzura and her husband, Stanislaw Dzura, were riding as guests of the defendant in his automobile, when, in attempting to pass to the left of a taxi cab driven by one Benvenuti, the defendant, to avoid a collision as the taxi cab swung to its left, so managed his vehicle that it skidded and was thrown against a tree. The wife was injured. Her husband was killed. These actions were brought by her, one to recover for the injury to herself, the other, as administratratrix of the deceased, to recover under G. L. c. 229, § 5, as amended by St. 1922, c. 439, and St. 1925, c. 346, § 9, the penalty for causing his death. After verdicts for the plaintiff, the defendant contends that there was error in refusing to direct verdicts for the defendant; in the admission of evidence; in refusing to instruct that ‘the plea of guilty testified to in the examination of the defendant cannot be considered by the jury upon the question of culpability of the defendant’; and in the portion of the charge relating to the request.

The evidence, taken most strongly for the plaintiff, would justify the following findings: The defendant, familiar with the locality, approaching a point on the State road in Sturbridge where driveways to the Elms Hotel and to the post office entered the road from his left, and following Benvenuti's automobile, was driving at the rate of thirty-five miles per hour. Benvenuti desiring to stop at the post office slowed somewhat, put out his hand to indicate a left turn, and drove to his left to enter the driveway. He saw in the mirror before him the defendant's car approaching rapidly, with no apparent slackening of speed. He crossed in front of it, immediately heard a crash, and stopped.

The defendant, disregarding or not seeing the outstretched hand, put on additional speed to pass to the left of Benvenuti; and, finding him crossing in front, swung more to the left, ran upon street car tracks at the side of the road, put on his brakes, skidded and brought up against a tree. Whether he blew a horn to warn Benvenuti of his intention to pass was disputable. For the purpose of deciding whether to direct a verdict the trial judge was bound to assume that he did not. We find nothing in the case cited by the defendant which required the trial judge to direct verdicts for the defendant on the ground that, as matter of law, the evidence was insufficient to support a finding of gross negligence-‘an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care * * * a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence * * * the omission of even such diligence as habitually inattentive and careless men do not fail to exercise in avoiding danger to their own person or property.’ Altman v. Aronson, 231 Mass. 588, 591, 592, 593, 121 N. E. 505, 506, 4 A. L. R. 1185. The exact details of the locality of the accident, of the relative position of the intersecting driveways or streets, of the conditions of highway and street railway surface, of speed, distances, precautionary signals, could only be determined by the jury from the conflicting testimony. It cannot be said properly that here there is no combination of circumstances which can amount to gross negligence. Different situations existed in Cook v. Cole (Mass.) 174 N. E. 271;Clay v. Pope & Cottle Co. (Mass.) 172 N. E. 880; and Cannon v. Bassett, 264 Mass. 383, 162 N. E. 772. Those decisions are not controlling on the facts which might here be found. In the action for death, proof of simple negligence was sufficient. Flynn v. Lewis, 231 Mass. 550, 121 N. E. 493, 2 A. L. R. 896. The cases fall within the decisions in Healy v. O'Riley, 257 Mass. 413, 153 N. E. 881;Manning v. Simpson, 261 Mass. 494, 159 N. E. 440;Rog v. Eltis (Mass.) 169 N. E. 413:Blood v. Adams (Mass.) 169 N. E. 412;Mccarron v. Bolduc (Mass.) 169 N. E. 559;Kirby v. Keating (Mass.) 171 N. E. 671;Logan v. Reardon (Mass.) 174 N. E. 264;Parker v. Moody (Mass.) 174 N. E. 189.

Three exceptions may be disposed of together. They relate to the admission and use of evidence that the defendant was familiar with the requirements of the statute. G. L. c. 90, § 24, as it then stood relating to the operation of a motor vehicle so as to endanger the lives and safety of the public. He testified, against exception, that he was familiar with the statute and that he had pleaded guilty to a charge of violating it in connection with this accident. No record was introduced. No insistence was made on the form of the questions...