Galliher v. Stewart

• Decision Date: 28 October 1941
• Parties: MARGARET A. GALLIHER, administratrix, v. KENNETH R. STEWART.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 77

37 N.E.2d 125

MARGARET A. GALLIHER, administratrix, v. KENNETH R. STEWART.

Supreme Judicial Court of Massachusetts, Berkshire.

October 28, 1941

September 16, 1941.

Present: FIELD, C.

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

Negligence, Motor vehicle, In use of way. Proximate Cause.

One operating an automobile at a reasonable rate of speed at night on the outside of a curve, which was not sharp, of a two-lane highway in such a manner that, although he remained at all times on his right side of the road, his lights were unnecessarily headed toward his left side of the road, so that, if he were to continue in the course indicated by the lights, it would be impossible for an automobile approaching from the opposite direction to drive inside a guard rail bordering the road on the inside of the curve, properly might be found guilty of negligence causing a collision with the approaching automobile whose operator, thinking to avoid a collision, drove across the center line in a deliberate attempt to pass to his left of the first automobile.

TWO ACTIONS OF TORT. Writs in the District Court of Central Berkshire dated February 13 and 24, 1939, respectively.

On removal to the Superior Court, the actions were tried together before Burns J. There were verdicts for the defendant.

L. S. Cain, (P.

J. Genovese &amp A.

W. Chesney with him,) for the plaintiffs.

M. B. Rosenfield, for the defendant.

COX, J. 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 collision 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 plaintiffs' exceptions were 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...