Gibbons v. Denoncourt
| Decision Date | 07 July 1937 |
| Citation | 9 N.E.2d 633,297 Mass. 448 |
| Parties | GIBBONS v. DENONCOURT (two cases). HIGGINS v. SAME. JOHNSON v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Actions of tort by Raymond J. Gibbons, Joseph P. Gibbons, Robert J. Higgins, and Ralph H. Johnson, against Ulric Denoncourt. From an order by the Appellate Division dismissing a consolidated report by Lynch, J., who found for the plaintiffs in the sums, respectively, of $300, $4,500, $350, and $3,500, the defendant appeals.
Affirmed.Appeal from Appellate Division of District Court, Western District; Lynch, Judge.
W. W. Buckley, of Worcester, for plaintiffs.
C. W. Proctor, of Worcester, for defendants.
An automobile, owned by the plaintiff in the first case and operated by the plaintiff in the second case, in which the other two plaintiffs were riding, was in collision with an automobile driven by the defendant in the intersection of Bartlett Street and ‘the Post Road’ in the town of Northborough, between the hours of 11 and 12 o'clock on the night of August 17, 1934. The automobile was damaged and the three plaintiffs in it received personal injuries.
A judge of a district court found for each plaintiff and at the request of the defendant reported to the Appellate Division in a consolidated report his denial of certain requests for rulings filed by the defendant and also his granting of certain requests for rulings filed by the plaintiffs. The Appellate Division ordered the report dismissed.
The report unnecessarily summarizes in great detail the testimony of the many witnesses called by the plaintiffs and by the defendant. The rights of the parties would have been adequately protected, the expense of appeal materially lessened and the record made more intelligible, if the report contained only ‘a clear and concise statement of so much of the evidence * * * as may be necessary to present the questions of law reported,’ in accordance with the requirements of Rule 28 of the District Courts (1932), (see page 56).
1. The evidence was conflicting as to many of the facts and circumstances which might be taken into account by a judge in deciding the cases. Where there is a collision of vehicles at the intersection of streets the due care of plaintiffs and the negligence of defendants are generally questions for the determination of the fact finding tribunal. Bresnick v. Heath (Mass.) 198 N.E. 175, and cases cited. If the defendant and witnesses called by him were believed by the judge, the findings should have been for the defendant. It is manifest that their testimony was not believed. There was evidence to warrant the findings that the plaintiffs were in the exercise of due care and that negligence of the defendant was the sole cause of the collision. This need not further be discussed, for the question whether the evidence warranted the findings for the plaintiffs is not before us. The defendant filed no request for rulings in the case where the owner of the automobile is the plaintiff. In each of the other cases he filed a request for the ruling: which was denied by the trial judge. Since the request was not accompanied by specifications of the grounds on which it was based in accordance with Rule 27 of the District Courts (1932), the defendant was not entitled as of right to a review by the Appellate Division of its refusal. The Appellate Division did not in its discretion review the refusal and no action of the Appellate Division with reference thereto is brought before us by the appeal. Forbes v. Gordon & Gerber, Inc., (Mass.) 9 N.E.(2d) 416, and cases cited.
2. The defendant contends that the judge erred in denying certain requests for rulings filed by him in the case in which the driver of the automobile in collision with the defendant's automobile was the plaintiff.
The second of these requests asked the judge to instruct himself in broad terms that ‘It was the duty of the plaintiff as he approached the intersection * * * to anticipate that automobiles might be traveling upon the road; to look carefully for their presence and to operate his automobile with due regard for his own safety.’ The judge was not obliged to treat the request as a pure abstraction and was entitled to deal with it as applying to the evidence introduced by the parties. The request dealt with the situation as the plaintiff approached the intersection. The prominent features of the request are a proper looking by the plaintiff and the exhibition of a proper regard for his own safety. Mere anticipation not evidenced by acts would not have been of consequence. The judge in denying the request found that ‘the plaintiff did look for the approach of a car and saw none.’
There was evidence warranting the conclusion that the plaintiff stopped his automobile near the macadam shoulder on the southerly side of the Post Road a few seconds before entering the intersection and then looked, at a time when, as the evidence warranted finding, there was no automobile within the distance of four or five hundred feet approaching the intersection from the left, the direction from which the defendant's automobile later came, and no automobile approaching from the opposite direction within seven hundred feet, that the plaintiff then shifted gears and proceeded across at the rate of speed of eight or ten miles an hour and was two-thirds across the intersection and on its northerly side when the left rear part of his automobile was hit by the front of the defendant's automobile. The defendant admitted that the speed of his automobile was thirty-five miles an hour and there was evidence justifying a conclusion that his speed was greater. We think there was no error in the manner in which the judge dealt with the second request of the defendant for a ruling.
The defendant's third request for a ruling in this case was to the effect that it was the duty of the plaintiff to look for the approach of automobiles not only as he approached the intersection but thereafter, and that if ‘he continued across the road in front of a rapidly approaching car’ the plaintiff was guilty of contributory negligence. In denying the request the judge found: ‘the plaintiff looked for a car and seeing none started to cross the road and was hit by the defendant.’ There was evidence warranting such finding. In view of the facts found by the judge and the absence of any assumption in the request as to the distance ‘the rapidly approaching car’ was from the intersection at the time the plaintiff ‘continued across' the request was rightly denied. It could not properly have been ruled as matter of law that the plaintiff was guilty of contributory negligence.
The defendant's fourth request for a ruling in this case was: ‘If the plaintiff continued the same course at the same speed into the path of the defendant's automobile, he is guilty of contributory negligence. * * *’ The request is apparently based on testimony introduced by the defendant to the effect that the plaintiff did not stop before entering the intersection, a version of fact which the judge did not accept. The assumption in the request is manifestly contrary to the facts as found by the judge, for, in denying it, he found that ‘the plaintiff did not continue in the same speed in the path of the defendant's car.’ As there was evidence supporting such a finding there was no error in denying the request. Mahoney v. Norcross, 284 Mass. 153, 187 N.E. 227.
3. In the two cases in which the plaintiffs were the other persons riding in the automobile, the defendant filed identical requests for rulings. The second request was: ‘If the plaintiff failed to look for the approach of the defendant's automobile as his driver approached the intersection of the street on which the automobile was traveling with the Post Road then the plaintiff is guilty of contributory negligence. * * *’ The judge in denying the request found that the plaintiffs did look for an approaching automobile and saw none, and there was evidence warranting such findings. The request assumed a fact contrary to the finding of the judge and there was no error in its refusal.
The third request for a ruling in each of these two cases was to the effect that if the plaintiff failed to warn the driver of the approach of an automobile ‘which was in plain sight and which he might have seen by careful looking’ he was guilty of contributory negligence. In refusing this request the judge stated in one case that the plaintiff ‘saw no car coming; hence no necessity of warning’ and in the other case ‘there was no car in sight when plaintiff looked.’ There was evidence warranting these findings. The request assumed facts contrary to the facts found by the judge. Holton v. Denaro, 278 Mass. 261, 179 N.E. 595. There was evidence that at the time the plaintiffs looked there was no automobile approaching at their left, which was the direction from which the defendant later came, for a distance of four or five hundred feet from the intersection. It could not properly have been ruled as matter of law that the plaintiffs were guilty of contributory negligence in not giving a warning to the driver. The denial of the requests was not error.
The defendant's fourth request for ruling in these two cases was to the effect that if the plaintiffs in approaching the intersection looked for automobiles to the right (which was in the direction opposite to that from which the defendant's automobile came), ‘and failed to see a car which was plainly visible’ they were guilty of contributory negligence and could not recover. The judge in denying this request, contrary to the assumption of facts therein contained, found in one case that ‘there was no car visible when plaintiff looked’ and in the other that ‘there was no car plainly visible when plaintiff approached the intersection.’ Even if the facts assumed in the request were true it could not be...
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