Galliher v. Stewart

Decision Date28 October 1941
Citation37 N.E.2d 125,310 Mass. 77
PartiesGALLIHER v. STEWART. BARTLEY v. SAME.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Berkshire County; W. A. Burns, Judge.

Actions of tort by Margaret A. Galliher, administratrix, and by Joseph Bartley against Kenneth R. Stewart, to recover for death of plaintiff Galliher's intestate and for injuries sustained by the other plaintiff when an automobile in which the intestate and Joseph Bartley were riding collided with an automobile driven by defendant. The jury returned verdicts for defendant and plaintiffs took exceptions.

Exceptions sustained.

Argued before FIELD, C. J., and QUA, DOLAN, COX, and RONAN, JJ.

L. S. Cain, P. J. Genovese and A. W. Chesney, all of Pittsfield, for plaintiffs.

M. B. Rosenfield, of Pittsfield, for defendant.

COX, Justice.

These two actions of tort, tried together, are to recover for the death of the plaintiff Galliher's intestate and for personal injuries sustained by the plaintiff Bartley when an automobile, driven by one Conley, in which they were riding, was in cllision with an automobile operated by the defendant. The collision occurred about a quarter past twelve on a December morning on a two-lane concrete road. It was snowing and visibility was poor. There was a curve in the highway, on the inner side of which was a guard rail with a sharp, deep drop ‘directly from’ it. The jury could have found that as Conley approached the guard rail, it being on his right, he was on his own side of the road. He testified that he observed the headlights of the defendant's automobile coming toward him on the outside of the curve; that the lights * * * were headed toward [his] Conley's side of the road in such a manner that if the defendant's car were to continue in that course, it would be impossible for * * * [him] to drive between it and the guard rail, that * * * [he] then drove straight across the center line in a deliberate attempt to pass the defendant on the left * * *.' The right front corner of the Conley automobile came in contact with the right front corner of the defendant's, and the latter remained approximately at the point of contact. There was other evidence that after the collision the defendant's automobile, which had not been moved, was at an angle headed toward the inside of the curve with its front left wheel about three feet over the center line of the road, and its rear left wheel not over the center line. The defendant testified, among other things, that his automobile did not move more than an inch or two after the contact. There was other evidence that the defendant's automobile was not to his left of the center line of the highway. It was uncontradicted that after the collision the defendant's automobile was at an angle ‘facing the inside’ of the curve, and that it had not been moved.

The trial judge instructed the jury, in effect, that if the defendant's automobile up to the time of the collision was upon its own side of the road, there could be no sudden emergency, as matter of law, confronting Conley, and that if he went to the left without being confronted by a sudden emergency and if the defendant was on his own side of the road and remained there, driving at a reasonable rate of speed, there would be no negligence on the defendant's part. Although it is not entirely clear, we think that the plaintiff' exceptions are directed to this portion of the charge, and we so deal with them. The cases were submitted to the jury, who returned a verdict for the defendant in each case.

Upon the evidence, the jury could have found that the defendant's automobile was, at all times, on its own side of the road, and, under the instructions, if they did so find and also found that its speed was reasonable and proper, they were not permitted to find negligence on his part. There is nothing in the record from which it could be found that there was any obstruction to travel on the defendant's side of the road. There was evidence that the tracks of the Conley automobile ‘as it crossed the center line’ were visible in the snow for a distance of forty-two feet, and, from the plan in the record, these tracks commence opposite a point approximately forty feet from the end of the guard rail in the...

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4 cases
  • Com. v. Geisler
    • United States
    • Appeals Court of Massachusetts
    • 30 Septiembre 1982
    ...in numerous Massachusetts decisions (see e.g., Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505 [1919]; Galliher v. Stewart, 310 Mass. 77, 80, 37 N.E.2d 125 [1941]; Beaver v. Costin, 352 Mass. 624, 626, 227 N.E.2d 344 [1967]; Goldstein v. Gontarz, 364 Mass. 800, 805, 309 N.E.2d 196 [1974......
  • Com. v. Burke
    • United States
    • Appeals Court of Massachusetts
    • 27 Noviembre 1978
    ...in numerous Massachusetts decisions (see e. g., Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505 (1919); Galliher v. Stewart, 310 Mass. 77, 80, 37 N.E.2d 125 (1941); Beaver v. Costin, 352 Mass. 624, 626, 227 N.E.2d 344 (1967); Goldstein v. Gontarz, 364 Mass. 800, 805, 309 N.E.2d 196 (197......
  • Galliher v. Stewart
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 28 Octubre 1941
  • Commonwealth v. Semensi
    • United States
    • Appeals Court of Massachusetts
    • 18 Junio 2021
    ...from the application of an objective standard"); Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 34 (2007), citing Galliher v. Stewart, 310 Mass. 77, 80 (1941) (negligence determined by "reasonable man objective tort standard" [quotation omitted]).The jury were entitled to conclude that und......

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