Herman v. Sladofsky
| Decision Date | 06 December 1938 |
| Parties | HERMAN v. SLADOFSKY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Hampden County; T. J. Hammond, Judge.
Action by Anna Herman, administratrix, against Julius Sladofsky, for death of plaintiff's intestate, Nathan Herman, who was killed when automobile which he was driving was struck by a truck owned by the defendant and operated by a servant of the defendant. Verdict for the plaintiff, and defendant brings exceptions.
Exceptions overruled.
B. F. Evarts, of Holyoke, for plaintiff.
J. A. Anderson, Jr., of Springfield, for defendant.
This is an action for the death of the plaintiff's intestate, Nathan Herman, alleged to have been caused by negligence of one Kostor, a servant of the defendant, in driving a motor truck against an automobile driven by the deceased. The accident occurred on March 8, 1934, in Newington in the State of Connecticut. The action is based upon section 5987 of the General Statutes of Connecticut (1930). Jackson v. Anthony, 282 Mass. 540, 545, 185 N.E. 389, and cases cited. The only exception is to the denial of a motion for a directed verdict for the defendant.
Kostor, within the scope of his employment, was driving south, and the deceased was driving north on a way known as ‘Eckert's Hill.’ There was evidence of these facts: The road was straight. It descended from north to south in a ‘pretty long and steep grade’ for about three thousand feet. At the point of the accident the grade was two and one half per cent to three per cent. The roadway was twenty-nine and one half feet wide, including shoulders which could be used for travel. Snow and sleet were falling, and the road was slippery from ice and snow. Neither vehicle had chains. The five-ton truck was loaded with four tons of apples. It was proceeding down the grade on the west side of the road. As the Herman automobile, coming up the grade on the east side of the road, approached the truck, the automobile slipped toward the west, that is, toward its left. ‘There was one continuous slip,’ ‘a gradual slip toward the center of the road,’ until ‘about four to five feet’ or ‘half the length’ of the automobile was west of the center line. The forward half remained east of the center line. While the Herman automobile was still slipping in this position, its left side and rear came into contact with the left forward portion of the oncoming truck on the west side of the road. The deceased was thrown out and killed. After the collision the truck crossed to the east side of the road, broke a telegraph pole and part of a cable fence, went into the ditch and turned on its side. The automobile of the deceased also came to rest on the east side of the road facing north. The two vehicles stopped about one hundred twenty feet apart. There was further evidence that Kostor was driving at twenty to twenty-five miles an hour; that he first saw the automobile of the deceased when it was twenty-five feet from him; that after the impact he lost control of his truck
Although there was other evidence tending to contradict some of the foregoing and to favor the defendant, taking into consideration the hill, the weight of the truck and its load, the speed of the truck as the jury could have found it upon all the evidence, the slippery condition of the road surface, the lack of chains, the failure sooner to see the automobile of the deceased, the space which the jury could have found was still available for passing, the loss of control, and the force and effect of the collision, we think the judge could not rightly have ruled as matter of law that the accident was not caused by negligence of the defendant's driver. Schuster v. Johnson, 108 Conn. 704, 145 A. 29;Deutsch v. LaBonne, 111 Conn. 41, 149 A. 244;Szabados v. Charlos, 119 Conn. 537, 541, 177 A. 719;Spain v. Oikemus, 278 Mass. 544, 180 N.E. 314;Goyette v. Amor, Mass., 2 N.E.2d 219.
The only evidence of the conduct of the deceased was that he was driving with worn tires and without chains up grade on his own side of a straight road at a speed ‘somewhat less' than twenty-seven miles and hour when he skidded to his left. The burden of proving contributory negligence was upon the defendant. G.L.(Ter. Ed.) c. 231, § 85. That statute relates to procedure and not to substantive rights. Levy v. Steiger, 233 Mass. 600, 124 N.E. 477;Holland v. Boston & Maine Railroad, 279 Mass. 342, 345, 181 N.E. 217. There is a similar statute in Connecticut. Public Acts of Connecticut, Cumulative Supplement, 1931, § 598a. The skidding alone is not even evidence of negligence. Lambert v. Eastern Massachusetts Street Railway Co., 240 Mass. 495, 499, 134 N.E. 340, 22 A.L.R. 1291. See James v. Von Schuckman, 115 Conn. 490, 162 A. 3. Taking all the evidence together, there is nothing to support a ruling as matter of law that the deceased was guilty of contributory negligence in the ordinary sense. White v. Ciriaco, 105 Conn. 553, 136 A. 70;James v. Von Schuckman, 115 Conn. 490, 493, 162 A. 3;Coates v. Bates, 265 Mass. 444, 164 N.E. 448.
But the defendant contends that the plaintiff is barred from recovery as matter of law by reason of the failure of the deceased to turn seasonably to his right, so as to give to Kostor ‘half of the traveled portion’ of the way ‘if practicable, and a fair and equal opportunity’ to pass, in violation of the first sentence of section 1639 of the General Statutes of Connecticut (1930) as amended, and as now appearing in the Cumulative Supplement for 1935, page 270, § 636c. As the defendant did not set up in his answer violation of law by the deceased as a defence, he is entitled to have such violation considered only in its bearing upon contributory negligence, which the defendant did set up. Conroy v. Mather, 217 Mass. 91, 94, 95, 96, 104 N.E. 487, 52 L.R.A.,N.S., 801; MacDonald v. Boston Elevated Railway Co., 262 Mass. 475, 160 N.E. 327;Baggs v. Hirschfield, Mass. 199 N.E. 136;MacInnis v. Morrissey, Mass., 11 N.E.2d 472. However, in Connecticut the doctrine of ‘negligence per se’ prevails, and violation of a statute by either a plaintiff or a defendant is commonly conclusive of negligence on his part. Sharkey v. Skilton, 83 Conn. 503, 508, 77 A. 950;DeAntonio v. New Haven Dairy Co., 105 Conn. 663, 669, 136 A. 567;Gross v. Boston, Worcester & New York Street Railway Co., 117 Conn. 589, 594, 169 A. 613;Frisbie v. Schinto, 120 Conn. 412, 415, 181 A. 535;England v....
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