Goldstein v. Gontarz

• Citation: 364 Mass. 800,309 N.E.2d 196
• Parties: Louis GOLDSTEIN v. Theodore GONTARZ et al.
• Decision Date: 20 March 1974
• Court: United States State Supreme Judicial Court of Massachusetts

Page 196

309 N.E.2d 196

364 Mass. 800

Louis GOLDSTEIN v. Theodore GONTARZ et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 7, 1973.

Decided March 20, 1974.

Daniel A. Lynch, Boston, for defendants.

J. Newton Esdaile, Boston, for plaintiff.

Before TAURO, C.J., and REARDON, QUIRICO, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

In this action for personal injuries in which the plaintiff Louis Goldstein recovered verdicts against the defendants, Yale Transport Corporation and its agent Theodore Gontarz, we hold that the judge did not err in denying the defendants' motions for directed verdicts, but that the judgments cannot stand because the plaintiff put irrelevant and prejudicial matter before the jury and the judge failed to take corrective action. We also discuss other points that may arise on a new trial.

We state the facts of the accident as they could appear to the jury. The plaintiff was employed as a foreman by J. Shore & Company, Incorporated, a wholesaler of nails and burlap products. He was in charge of the warehouse activity including the loading and unloading of trucks through docking days. At the time of the accident on March 10, 1969, he was fifty-two years of age, had worked for J. Shore since 1945, and was earning about $200 a week.

March 10 was a fair, cold day. Six to eight inches of snow from two snowstorms lay in the warehouse yard. The truck traffic had packed the snow and made it somewhat icy. When work started in the morning, a J. Shore truck was at bay 3 and the plaintiff helped to load it. After that truck moved out of the bay, a truck of the defendant Yale Transport Corporation was backed in by the defendant Gontarz, unassisted.

The Yale truck consisted of a diesel tractor about twelve to fifteen feet long and a forty-foot trailer whose body was about eight feet wide and eight feet high and stood about four and one-half to five feet from the ground. The tractor had adjustable rear view mirrors on both sides of the cab giving a view to the sides and rear of the trailer. Forward the tractor had two wheels and in the rear two dual wheels; the trailer had four rear wheels. Each wheel was air-braked and a single brake pedal, three inches from the accelerator, controlled all the brakes. The tractor weighed five tons and was hauling a load of nearly twenty tons of nails and bailing wire.

Bay 3 was approximately four feet above the ground. From ten feet in front of the bay the yard pitched eight inches up to the dock. The open bay was eight feet wide and eight or nine feet high, thus nearly matching the width and height of the body of the Yale trailer. On each side of the dockboard, within an inch of the end of the bay, a steel faced rubber bumper had been fastened, about eight inches wide and sixteen inches long, protruding about four inches from the face of the building. The building surfaces surrounding the bay were of concrete and brick. A spring held docking plate, six feet square with a sixteen inch protruding lip, formed part of the inside flooring of the bay. When a vehicle was backed to the bay, the operator would raise the docking plate with a hand lever, draw out the lip with another lever, and then lower the lip onto the back of the vehicle, walking on it or driving a fork lift over it to insure a firm flooring for loading and unloading purposes.

Resuming with the events of March 10: The Yale truck having been backed, the plaintiff, from inside the bay, lowered the lip of the docking plate over and onto the trailer, and proceeded to unload it by means of a fork lift running back and forth between the warehouse and the trailer over the docking plate and its lip. As pallets of nails were removed, the end of the trailer gradually rose, pushing up the lip of the docking plate and thereby shortening the overhang on the trailer and breaking up the flooring for the movement of the fork lift. When about three-quarters of the nails had been removed, the plaintiff told the defendant Gontarz that the back edge of the trailer was getting too close to the end of the lip and instructed Gontarz to pull the truck out ten or fifteen feet and readjust.

Gontarz drove the truck out but it became stuck in the snow, so Gontarz and the plaintiff with two other J. Shore employees set about removing snow and ice from the rear wheels of the tractor and the trailer. The plaintiff then told Gontarz to wait and he would go into the shop and direct him back to the bay. Gontarz said okay and the plaintiff went through the office building to the warehouse bay and stood at the front of the left hand end of the platform (as one looked out into the warehouse yard) with one foot on the cement and the other on the docking plate. The plaintiff took up this position before Gontarz ree ntered the tractor. Gontarz rocked the truck back and forth a few times, then started the truck slowly backwards, with the plaintiff signalling to Gontarz, whom he could not see, with a sweeping motion of his left hand, the arm extended against the side of the building. When the trailer had come within a few feet of the platform, the plaintiff signalled with his left hand to stop. The truck stopped. The plaintiff then signalled with the sweeping motion again, and the truck started slowly back, coming, slightly at an angle, within a few inches of the bumpers. The plaintiff again signalled to stop, and the truck stopped two inches from the bumpers. The plaintiff looked down to make sure that the trailer was in a position to receive the lip of the docking plate. There was a roar of the truck motor and, before the plaintiff had a chance to withdraw his left arm, the trcuk lurched back over the left bumper, ramming the corner and wall left of the bay platform. The plaintiff's arm was caught between the truck and the corner. The arm was severly and permanently injured.

On his part, Gontarz testified that there was no arrangement for the plaintiff to direct him into the bay, that he performed the backing operation unassisted, looking in the right hand mirror, not the left, and that he had no sight of the plaintiff and knew nothing of any signalling by him. Two police officers, however, testified to a conversation with Gontarz after the accident from which it would appear that Gontarz was taking directions from the plaintiff; and the plaintiff testified that Gontarz admitted to him at the hospital that his foot had slipped off the brake and onto the accelerator.

1. The defendants claim error in the denial of their motions for directed verdicts, insisting not that Gontarz was free of negligence, but that the judge should have found the plaintiff to have been contributorily negligent as matter of law. The burden of establishing that the plaintiff was contributorily negligent was on the defendants. G.L. c. 231, § 85 (prior to amendments by St.1969, c. 761, and St.1973, c. 1123). It is only in a 'rare' case in an exceptional situation that it can be ruled as matter of law that a proponent has met this burden. Halley v. Hugh Nawn, Inc., 356 Mass. 28, 30, 248 N.E.2d 5 (1969). Joyce v. New York, N.H. and H.R.R., 301 Mass. 361, 363, 17 N.E.2d 189 (1938). We do not think this is such a case. It is argued that the action of the plaintiff in extending his arm against the wall while directing a truck driver in a cab fifty feet away, whom he could not see, amounted to utterly heedless conduct. But on the evidence the jury could find that it was agreed the plaintiff would give directions as to the movement of the truck, that in pursuance of the understanding directions were given and followed nearly to the end, that the arrangement was not foolhardy, and its execution on the plaintiff's part not indifferent to his own safety. Moreover, '(a)lthough it was the duty of the plaintiff to exercise the care of a reasonably prudent person under all the circumstances, he could rely to some extent on the assumption that the driver of the truck would exercise some care to avoid hitting him.' Dube v. Keogh Storage Co., 236 Mass. 488, 492, 128 N.E. 782, 785 (1920). See Falzone v. Burgoyne, 317 Mass. 493, 497, 58 N.E.2d 751 (1945); Holden v. Bloom, 314 Mass. 309, 313, 50 N.E.2d 193 (1943). In the circumstances we cannot say that the plaintiff's lowering his eyes to the platform for a moment, after the truck had stopped inches from the dock, shows conclusively a lack of care. Ferrairs v. Hewes, 301 Mass. 116, 119, 16 N.E.2d 674 (1938). Runnells v. Cassidy, 307 Mass. 128, 130, 29 N.E.2d 762 (1940). And considering how sudden was the backward lurch of the truck, any fault of the plaintiff could be found to have contributed nothing to the injury. Cf. Neylon v. Phillips, 179 Mass. 334, 336, 60 N.E. 616 (1901). ¹

2. The defendants now accept that Gontarz's negligence was a question for the jury, but they contend that the judge instructed erroneously on that matter.

The judge charged, first, in conventional style, that '(n)egligence is the failure to exercise that degree of care, diligence and safety that an ordinarily prudent person would exercise under similar circumstances.' After touching on several other points, the judge returned to the subject, and in amplification said that the 'backing of a vehicle' is an 'operation of a vehicle which should only be undertaken with extreme care.' The judge then quoted language from Minsk v. Pitaro, 284 Mass. 109, 112, 187 N.E. 224, 225 (1933). ² He said further: 'It entails a limitation of the driver's view when you're backing up; and it's something to be undertaken only with extreme care and diligence on the part of the operator.' Twice more the words 'extreme care' were repeated in this passage of the charge. The defendants objected and excepted to all but the initial statement by the judge.

The charge was not exemplary, but we believe it passes muster. In deciding whether there was negligence, the trier is to ask how a person of ordinary prudence would act in the circumstances. This is the...