Ferrairs v. Hewes
| Decision Date | 12 September 1938 |
| Citation | 16 N.E.2d 674,301 Mass. 116 |
| Parties | JOHN FERRAIRS v. PEARL L. HEWES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 23, 1937.
Present: FIELD, C.
J., DONAHUE LUMMUS, & QUA, JJ.
Negligence Contributory, In use of way. Practice, Civil, Auditor: motion to strike matter from report; Exceptions: whether error harmful.
Evidence of the circumstances in which a workman facing south when repairing a highway was struck by an automobile which had approached from the north shortly after he had looked in that direction and had seen a traffic officer at his post there, did not require a finding of contributory negligence of the workman.
A refusal to strike incorrect statements of law from an auditor's report before it was read to a jury was not prejudicial error in view of full and explicit instructions given to the jury at that time and later.
TORT. Writ in the District Court of Springfield dated November 13, 1935.
On removal to the Superior Court, the action was heard by an auditor and afterwards was tried before Broadhurst, J. There was a verdict for the plaintiff in the sum of $1,500. The defendant alleged exceptions.
The case was submitted on briefs.
A. L. Green, S.
S. Lyon, for the defendant.
H. A. Moran & S.
A. Moynahan, for the plaintiff.
The plaintiff seeks to recover damages for personal injuries received by him while engaged in repairing a highway in the town of Southwick, as the result of being struck by an automobile owned and operated by the defendant. The case was tried before a jury on the testimony of witnesses and the report of an auditor. The case is here on exceptions to the refusal of the trial judge to strike out portions of the auditor's report before it was read to the jury, and to his refusal to direct a verdict for the defendant.
1. The evidence bearing on the issue of liability was conflicting.
We, therefore, here consider the evidence in its aspects most favorable to the plaintiff. The plaintiff with other workmen had, for some weeks, been engaged in resurfacing a highway which ran north and south. The work was being done on a hill and at the time of the accident work was in progress only on the westerly half of the highway. The easterly half, for the width of at least twelve feet, was open both to southbound and to northbound traffic. The defendant at the time of the accident was operating her automobile in a southerly direction up the hill. Its speed was twenty to twenty-five miles an hour at the foot of the hill and about fifteen miles an hour at the time of the accident. She had not noticed a sign which was at the bottom of the hill warning travellers that the road was under construction and that men were at work. A traffic officer was stationed on the easterly side of the highway about one hundred fifty feet down hill from the scene of the accident. He waved a red flag and shouted to the defendant as she passed to slow down but she neither saw nor heard him. At some point after passing the traffic officer the defendant observed that men were at work on the highway. There was on the hill no vehicle other than the defendant's automobile moving in either direction on the portion of the highway open to travel. The day was clear, the road was straight, and there was nothing to obstruct the defendant's view of the plaintiff. He was working at the extreme westerly edge of the portion of the highway open to traffic with his back to the north, the direction from which the defendant came. There was nothing to prevent the defendant from keeping her automobile in the center of the easterly half of the road and thus avoiding a collision with the plaintiff. She, however, drove the automobile to the westerly edge of the travelled way, where it struck the plaintiff.
A conclusion was warranted that the defendant was negligent. She now makes no contention to the contrary. She does contend that negligence of the plaintiff contributed to causing his injury.
In addition to the facts above related, there was evidence warranting the finding of the following additional circumstances. A machine referred to as a stone spreader was in operation on the westerly half of the highway depositing crushed stone thereon which workmen were spreading and levelling. Nearby, for a period of four or five minutes preceding the accident, the plaintiff was moving in a southerly direction along the extreme westerly portion of the half of the road which was open to traffic. By means of a fork he was throwing loose stones which had come upon that half of the road back upon the part of the road which was under construction. The plaintiff testified that he did not remember when he last looked for traffic coming from the north, but that three or four minutes before the accident he looked down hill to the north, saw the traffic officer at his post and relied on the traffic officer not letting him get hurt. Shortly prior to the accident he looked to the south and saw no automobile approaching.
The plaintiff was rightfully on the highway. This is not a case where it can be said that the plaintiff exercised no care for his own safety. The question is whether it could properly have been ruled as matter of law that the care used by him was inadequate. The extent of care which he was required to exercise depended upon all the dangers which he should reasonably have anticipated in the circumstances. No such situation existed in the highway in question as to require him continuously to look for automobiles coming from the north. The plaintiff was not crossing the travelled road; he was proceeding, as he worked, in a southerly direction along its westerly edge. Shortly before the accident, the plaintiff looked to the south and saw that no automobile was approaching from that direction. Three or four minutes before the accident he looked to the north and saw that the traffic officer was at his post. He had the right to rely to some...
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