Elfman v. Kronenberg

• Decision Date: 28 February 1938
• Citation: 299 Mass. 492,13 N.E.2d 405
• Parties: ABRAHAM ELFMAN v. FRANK KRONENBERG
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 492

13 N.E.2d 405

ABRAHAM ELFMAN v. FRANK KRONENBERG

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1938

January 4, 1938.

Present: RUGG, C.

J., DONAHUE, QUA DOLAN, & COX, JJ.

Negligence Contributory. Evidence, Presumptions and burden of proof.

Under G. L. (Ter Ed.) c. 231, Section 85, the question, whether there was sufficient evidence to warrant a finding of the plaintiff's contributory negligence and the submission of that issue to the jury in an action for personal injuries was one of law.

In the absence of evidence showing that one riding in the rumble seat of an automobile had any reason to distrust the skill or to protest against the conduct of the driver, it was error to submit to a jury the question, whether negligence of the passenger contributed to a collision with another automobile which occurred almost immediately after he entered the automobile and which could have been found due to the negligence of both drivers.

TORT. Writ in the Superior Court dated July 15, 1933. A verdict for the defendant was returned before Hurley, J.

The plaintiff alleged exceptions. A. S. Allen, for the plaintiff.

K. C. Parker, for the defendant.

DOLAN, J. This is an action to recover for personal injuries sustained by the plaintiff as a result of a collision of automobiles on November 2, 1932, at or near the intersection of Cross and Lansdowne streets, public highways in the city of Cambridge.

The defendant filed an answer containing a general denial and an allegation that the plaintiff was guilty of contributory negligence.

The case was tried to a jury and a verdict was returned for the defendant. There was evidence which would warrant the jury in finding that both the defendant and Emond (who was the owner and operator of the vehicle in which the plaintiff was riding as a guest) were negligent. The only question presented for our consideration is whether there was sufficient evidence which made it proper for the judge to submit to the jury the question whether the plaintiff negligently abandoned the exercise of his own faculties and trusted entirely to the care and vigilance of the driver. No contention is made that the instructions of the judge to the jury as to this subject matter did not correctly state the law.

Emond, one Johnson and the plaintiff were fellow workers at a factory on Albany Street in the city of Cambridge. On the day of the accident when they had finished their work, Johnson entered Emond's roadster and sat beside him; the plaintiff entered and sat in the rumble seat. The vehicle was driven by Emond "right up" to Cross Street, which is a highway about forty feet wide leading into Lansdowne Street. There was an automobile parked on the corner of Cross and Lansdowne streets to the right of Emond's roadster, which obscured his vision of what was going along Lansdowne Street until he got by. He had to swing over to get around the parked automobile and the left wheel of his roadster was over the middle of the way.

He was travelling slowly as he was making the corner. The defendant's automobile was approaching at a rate of speed of about fifteen miles an hour. It was also over to the left of the middle of the way, and collided with Emond's automobile striking the radiator. At that time Emond's vehicle had stopped. Emond and the defendant left their respective vehicles and engaged in conversation. The defendant said: "I am sorry this happened. A fellow hailed me up there at...