Finnegan v. Checker Taxi Co.
| Decision Date | 31 March 1938 |
| Citation | 300 Mass. 62,14 N.E.2d 127 |
| Parties | FINNEGAN v. CHECKER TAXI CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Brogna, Judge.
Action by Joseph Finnegan, administrator of the estate of Mary Geraghty, deceased, against the Checker Taxi Company for damages for the conscious suffering and death of plaintiff's intestate. Verdict for plaintiff for $3,000 on the conscious suffering count, reduced by remittitur to $2,000, and directed verdict for defendant on the death counts, and both parties bring exceptions.
Judgments accordingly entered on the verdicts.Joseph Finnegan, Frederick J. Madden, and Timothy J. Murphy, all of Boston, for plaintiff.
Thomas H. Mahony, of Boston, for defendant.
The plaintiff, as administrator of the estate of Mary Geraghty, brought this action to recover damages for the conscious suffering and the death of his intestate. At the trial in the Superior Court the judge directed a verdict for the defendant which alleged counts in the declaration which alleged liability of the defendant for the death of the plaintiff's intestate. The case was submitted to the jury on two counts alleging liability of the defendant for conscious suffering. There was a verdict for the plaintiff. The judge reported for the determination of this court his direction of a verdict for the defendant on the death counts and other questions raised at the trial by exceptions of the parties.
The decedent entered a taxicab of the defendant at the South Station. While proceeding toward her destination it came into collision with an automobile. It was agreed by counsel at the trial that the collision took place on a public highway, that the decedent was a passenger for hire and that the operator of the taxicab was an agent of the defendant acting within the scope of his employment. There was evidence warranting the finding of the following facts with respect to the collision. The taxicab was proceeding along the street in heavy traffic. Just before the collision there were, ahead of the taxicab, a bus, stopped at the right hand curb, and an automobile headed in the same direction as the taxicab, at the left of, and opposite, the bus, the space between those two vehicles being about six feet. The width of the taxicab was a little more than six feet. The operator of the taxicab attempted to drive his vehicle through this space at the left of the bus and at the right of the automobile. There was not room for passage and the taxicab collided with the automobile, the left front wheel of the taxicab becoming locked with the right front wheel of the automobile. As a result of the collision the decedent was thrown from her seat, striking the back of the front seat and injuring her chest. After the vehicles were, with some difficulty, separated, the taxicab proceeded with the decedent to her destination. She suffered from the injury to her chest during the night and in the morning died of a heart attack. There was testimony from a physician called as an expert witness that her experience in the accident tended to accentuate and aggravate a condition presentin her body and led to her death more rapidly than it would otherwise have occurred.
1. The defendant's exceptions are first considered.
The plaintiff introduced in evidence without objection the following rule established by the Boston traffic commission: ‘The operator of any vehicle overtaking another vehicle proceeding in the same direction shall pass at a safe distance to the left thereof, and shall not cut in ahead of the latter until safely clear of the overtaken vehicle.’ A statutory rule of the road, G.L.(Ter.Ed.) c. 89, § 2, then in force provided: ‘The driver of a vehicle passing another vehicle traveling in the same direction shall drive to the left of the middle of the traveled part of a way,’ and in section 5 it was provided that ‘whoever violates * * * [s. 2] shall * * * be liable in an action commenced within twelve months after the date of such violation for all damage caused thereby.’ The present action was brought within twelve months of the accident.
The defendant excepted to a portion of the judge's charge to the effect that a violation by the operator of the rule of the Boston traffic commission above quoted would be evidence of his negligence and that a violation of the statute would make the defendant liable ‘for all damage caused thereby.’
The judge did not err in instructing the jury that if a violation of the rule of the Boston traffic commission by the operator of the taxicab were found, this would be evidence for the consideration of the jury on the matter of his negligence. Milbury v. Turner Centre System, 274 Mass. 358, 361, 174 N.E. 471, 73 A.L.R. 1070, and cases cited. There was evidence on which such a violation could have been found. Apart from a violation of the rule there was evidence warranting a finding that the operator was negligent. A verdict for the plaintiff was justified on the sixth count of the declaration which alleged that negligence of the defendant's agent or servant resulted in pain and suffering of the plaintiff's intestate.
At the time of the trial there was no count in the declaration asserting a right of recovery for conscious suffering of the plaintiff's intestate based on a violation of the statutory law of the road hereinbefore quoted. G.L. (Ter.Ed.) c. 89, §§ 2, 5. The judge, however, instructed the jury that if they found a violation of the statute the defendant was liable for all damage to the plaintiff's intestate caused thereby. After the verdict the judge allowed an amendment to the declaration by the addition of a count for conscious suffering, specifically alleging a violation of the statutory law of the road.
The allowance of the amendment involved a finding by the judge that it would permit the plaintiff to maintain the action for the cause for which it was brought. G.L.(Ter.Ed.) c. 231, § 51. Its allowance was within his discretionary power. Melanson v. Smith, 282 Mass. 85, 87, 184 N.E. 382. He could exercise such power after, as well as before a verdict. Pizer v. Hunt, 253 Mass. 321, 148 N.E. 801. The declaration having been properly amended, we must now consider the conduct of the trial and exceptions there taken as if the amendment had been in the declaration originally filed. Gallagher v. Wheeler, Mass., 198 N.E. 891;Regan v. Keyes, 204 Mass. 294, 305, 90 N.E. 847. There was evidence to warrant a finding that the operator of the taxicab violated the law of the road as alleged in the count added to the declaration. Under the law respecting the liability of the defendant as it stood at the time of the trial there was no error in the judge's instruction that if the jury found such a violation the defendant would be liable for damage resulting to the plaintiff's intestate. Gallagher v. Wheeler, Mass., 198 N.E. 891. The defendant's exception to this instruction must be overruled.
The trial was in October, 1935. Sometime after the verdict for the plaintiff on the counts for conscious suffering and before the judge filed his report to this court of exceptions taken by the parties, the Legislature passed an act, St.1936, c. 49, which struck from G.l. (Ter.Ed.) c. 89, § 5, the language which created a civil liability for a violation of the statutory law of the road. Inasmuch as St.1936, c. 49, contained no saving clause as to pending actions or existing causes of action, the right of a plaintiff to recover damages in a civil action for a violation of the law of the road no longer existed. Pittsley v. David, Mass., 11 N.E.2d 461;Sullivan v. Cushing, Mass., 11 N.E.2d 917. However, at a time when the plaintiff in this case had the right to maintain an action based on such a violation of the statute, there had been a full trial of the issues raised by the parties and the materialfacts had been settled by a verdict of the jury for the plaintff. The exceptions taken were all that prevented the entry of judgment for the plaintiff on the counts for conscious suffering, long before the repealing statute was passed. The exceptions of the defendant here presented disclose no error, as the law then stood. In these circumstances we think that justice requires that judgment should now be entered on the verdict for the plaintiff on the counts for conscious suffering as of some date before the passage of St.1936, c. 49. A nunc pro tunc order for judgment on a verdict may properly be entered where a statute on which liability was founded has been repealed after the verdict. G.L. (Ter.Ed.) c. 235, § 4. Springfield v. Worcester, 2 Cush. 53, 61, 62;Whiting v. Whiting, 114 Mass. 494, 496;Perkins v. Perkins, 225 Mass. 392, 396, 114 N.E. 713;DesLauries v. Shea, Mass., 13 N.E.2d 932. See Rosenblum v. Ginis, Mass., 9 N.E.2d 525, and cases cited.
2. The plaintiff excepted to the direction of a verdict for the defendant on four counts in the declaration, numbered 1, 3, 4 and 5, under which he sought to recover damages for the death of his intestate.
The third, fourth and fifth counts all alleged that the defendant was a common carrier of passengers for hire. They respectively stated as the cause of the death of the plaintiff's intestate, the negligence of the defendant corporation itself, the unfitness of its agents or servants, and their gross negligence. These are grounds, and the only grounds, on which a common carrier of passengers, other than a railroad corporation or street railway or electric railroad company, may be found liable for the death of a passenger. G.L.(Ter.Ed.) c. 229, § 2. The evidence did not warrant a finding that any of these statutory bases of liability caused the death of the plaintiff's intestate. The direction of a verdict for the defendant on counts 3, 4 and 5 was not error.
The plaintiff contends that the case should have been submitted to the jury, on the first death count which does not allege that the defendant was a...
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