Hall v. Shain

• Decision Date: 17 September 1935
• Citation: 291 Mass. 506,197 N.E. 437
• Parties: HALL v. SHAIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

291 Mass. 506

197 N.E. 437

HALL v. SHAIN.

Supreme Judicial Court of Massachusetts, Norfolk.

September 17, 1935

Exceptions from Superior Court, Norfolk County; J. J. Burns Judge.

Action of tort by Carolyn R. Hall, executrix, against Arthur I Shain. Verdicts for plaintiff for $2,048 on a count for conscious suffering and $6,250 on a count for death. On defendant's exceptions after denial of defendant's motion for directed verdict.

Exceptions sustained.

J. M. Morrison and R. N. Daley, Jr., both of Boston, for plaintiff.

R. J. Walsh, of Boston, for defendant.

RUGG Chief Justice.

This is an action of tort to recover damages for the conscious suffering and death of the plaintiff's testator, hereafter called the deceased, alleged to have been caused by the negligence of the defendant in the operation of his automobile on Beacon street, near its intersection with Powell street, in Brookline. The case comes before this court on the exceptions by the defendant (1) to the denial of his motion for a directed verdict in his favor, (2) to certain portions of the charge and (3) to the admission of testimony.

The case is somewhat unusual in that the defendant testified that he found the deceased lying in the roadway and that his motor vehicle was not connected in any way with the injuries of the deceased. No witness testified that he saw the deceased struck by a motor vehicle. There was ample testimony, which need not be narrated or summarized, to show that the injuries from which the deceased was suffering were consistent with his having been struck by a motor vehicle and that those injuries were an adequate cause for his death. Marlow v. Dike, 269 Mass. 38, 168 N.E. 154. There was evidence tending to show that on the evening of November 29, 1927, the defendant was driving west on Beacon street toward his home, that he was seen by a messenger boy named Yaitanes putting the deceased into his automobile, that the defendant asked help of Yaitanes, that the latter inquired whether the defendant hit the man and that the defendant replied in the affirmative. This admission was sufficient to justify a finding that the motor vehicle of the defendant struck the deceased. Leary v. Keith, 256 Mass. 157, 158, 152 N.E. 245. There was further evidence to the effect that the deceased left the home of the plaintiff at about 9:30 p. m. on the night in question; that shortly afterwards the deceased was picked up by the defendant nearby and taken to the MacLeod Hospital; that skid marks approximately thirty-five feet long were found leading diagonally from the intersection of Beacon and Powell streets to a point about five feet beyond the crosswalk; that the skid marks stopped directly in the rear of the defendant's motor vehicle as Yaitanes saw it on the night of the accident; that the defendant admitted that they were caused by his motor vehicle; that the body of the deceased was in the gutter just in front of the defendant's motor vehicle when he stopped; that when the motor vehicle of the defendant came to a stop it was facing diagonally to its left; that following the accident the broken pieces of the eyeglasses worn by the deceased were found just ahead of the end of the skid marks; that the speed of the motor vehicle driven by the defendant was thiryt-five miles an hour; that the street was thirty-five or forty or possibly fifty feet wide at that point; that a nearby street light was lighted; that there was a clear view along Beacon street; that the headlights on the defendant's motor vehicle complied with the law and were lighted and would show fifty to seventy-five feet ahead or more; that the defendant said that he saw the deceased when he got to the crossing and that the defendant was very excited and nervous.

All this evidence was sufficient to support a finding that the defendant while negligently operating his motor vehicle struck and injured the deceased. Fraser v. Flanders, 248 Mass. 62, 66, 142 N.E. 836; O'Keefe v. United Motors Service, Inc., 253 Mass. 603, 149 N.E. 599; Clark v. C. E. Fay Co., 281 Mass. 240, 183 N.E. 423; Conrad v. Mazman, 287 Mass. 229, 191 N.E. 765. The speed of the motor vehicle of the defendant in violation of the statute, the striking of the deceased in a broad street partially lighted and the lights on the motor vehicle of the defendant ( Kzcowski v. Johnowicz, 287 Mass. 441, 192 N.E. 6) were circumstances adequate to afford basis for a finding of negligence of the defendant. Barrett v. Checker Taxi Co., 263 Mass. 252, 160 N.E. 792; Hennessey v. Moynihan, 272 Mass. 165, 172 N.E. 93; Griffin v. Feeney, 279 Mass. 602, 181 N.E. 710; Fayard v. Morrissey, 281 Mass. 166, 183 N.E. 154; Carbonneau v. Cavanaugh (Mass.) 194 N.E. 724.

It is plain that it could not properly have been ruled as matter of law that the defendant sustained the burden of proving contributory negligence on the part of the deceased. The only evidence bearing on that point was testimony that the deceased crossed the street and that was the last he remembered. O'Connor v. Hickey, 268 Mass. 454, 458, 167 N.E. 746; Mercier v. Union Street R. Co., 230 Mass. 397, 404, 119 N.E. 764; Mulroy v. Marinakis, 271 Mass. 421, 171 N.E. 670; Legg v. Bloom, 282 Mass. 303, 305, 184 N.E. 832.

The evidence required the submission to the jury of the issues of the negligence of the defendant and of the contributory negligence of the deceased. The motion of the defendant for a directed verdict in his favor was denied rightly. Noyes v. Whiting (Mass.) 194 N.E. 93.

The exception as to evidence arose in this way: After cross-examination of the plaintiff she was asked on redirect examination, ‘ You have been asked about suspicious circumstances * * * things with regard to Dr. Shain, his conduct, which impressed you as suspicious. Will you tell us in your own words what there was?’ Subject to the exception of the defendant she was allowed to testify as follows: ‘ The fact that Dr. Shain was so very-appeared to be so very nervous, and such a ghastly pallor; that he was so nervous, according to what he said himself, that he didn't know where this accident had happened, and he put it somewhere north of St. Mary's street, which is a mile, well, must be a mile south of 1180 Beacon street, I should think. Then later the next day the fact that he was so sure although Dr. Stevens was there with him and wasn't at all sure in his mind what had happened to Mr Read, but Dr. Shain felt sure and said so at that time, although he had no bruises, no black and blue marks, and no indications of a blow or anything of that sort; Dr. Shain was so absolutely sure that it was an automobile, whereas at that time Dr. Stevens wasn't sure what had happened to Mr. Read, and then coupled with that the fact that the night before Dr. Shain had said that an automobile had hit him, and he had sent word to me over the telephone by some woman at this hospital that she was speaking for Dr. Shain from the MacLeod Hospital, and that Mr. Read had been hit by an automobile. Then there were, of course, other things; he had said that night that those were his skid marks, and we found the glasses right by those skid marks, the glasses that the nurse had called my attention to, to the fact, or had asked me if Mr. Read wore glasses, and we found the remains of those glasses right by these very noticeable skid marks. Then the fact that Dr. Shain said that he was driving at a good pace that night and would have to skid to stop if he were going fast at any corner, and then the fact that he didn't seem to want to talk with the police. I knew that Sergeant Donovan hadn't been able to talk with Dr. Shain the second time he came to see us. ...