Herman v. Sladofsky

• Decision Date: 05 December 1938
• Parties: ANNA HERMAN, administratrix de bonis non, v. JULIUS SLADOFSKY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

301 Mass. 534

17 N.E.2d 879

ANNA HERMAN, administratrix de bonis non, v. JULIUS SLADOFSKY.

Supreme Judicial Court of Massachusetts, Hampden.

December 5, 1938

September 22, 1938.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, & RONAN, JJ.

Negligence, Motor vehicle, In use of way, Contributory, Violation of law.

Evidence warranted a finding of negligence on the part of the operator of a heavily loaded truck who, while going down a hill on his own side of a road in snow and sleet without chains at a speed of twenty to twenty-five miles per hour, struck an automobile which was coming from the opposite direction partly on his side of the road ahead of him and which he did not see until he was twenty-five feet from it.

Evidence that an automobile was being operated uphill on a slippery road with worn tires and without chains at about twenty-seven miles an hour, and that it skidded to the wrong side of the road just before it was struck by a truck coming from the opposite direction, did not require a ruling as matter of law that the operator of the automobile was guilty of contributory negligence.

In an action here for personal injuries sustained in Connecticut, the defendant might rely on a violation by the plaintiff of a statute of

Connecticut which under the law of that State, commonly was conclusive of negligence, although he had not set up such defence specifically in his answer but had set up only contributory negligence of the plaintiff.

The mere fact that the plaintiff, in an action here for personal injuries sustained in a collision in Connecticut, was himself operating on the wrong side of the road in violation of a statute which by the law of

Connecticut commonly was conclusive of his negligence, did not under that law preclude maintenance of the action where there also was evidence that such violation of the statute was caused by skidding not due to fault on his part.

TORT. Writ in the Superior Court dated May 2, 1934. The action was tried before T. J. Hammond, J. There was a verdict for the plaintiff in the sum of $2,000. The defendant alleged exceptions.

Section 5987 of the Gen. Sts. of Connecticut (1930) reads as follows "Actions for injuries resulting in death; damages. In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, or whether caused by the negligence of the defendant or by his wilful, malicious or felonious act, such executor or administrator may recover from the party legally at fault for such injuries just damages not exceeding ten thousand dollars, provided no action shall be brought under this section but within one year from the neglect complained of or from the commission of such wilful, malicious or felonious act. All damages recovered under this section shall be distributed as directed in Section 4983."

A material portion of Section 1639, as amended, as appearing in Cumulative Supplement of 1935, page 270, reads as follows in substance: "(a) Any person, when driving, operating or having the custody of a vehicle on the highway, who shall meet any person . . . driving . . . or operating a vehicle in the traveled portion of such highway, shall reduce its speed when reasonable care shall require and seasonably turn to the right so as to give half of the traveled portion of such highway, if practicable, and a fair and equal opportunity to the person so met to pass . . . ."

J. A. Anderson, Jr., for the defendant. B. F. Evarts, for the plaintiff.

QUA, J. 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, 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 "because it was sliding. You know how a loaded truck is . . . . It is hard to control down, coming down a hill, so . . . [he] couldn't do anything but let it go."

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. Deutsch v. LaBonne, 111 Conn. 41. Szabados v. Chatlos, 119 Conn. 537, 541. Spain v. Oikemus, 278 Mass. 544 . Goyette v. Amor, 294 Mass. 355 .

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 an hour when he skidded to his left. The burden of proving contributory negligence was upon the defendant. G. L. (Ter. Ed.) c. 231, Section 85. That statute relates to procedure and not to substantive rights. Levy v. Steiger, 233 Mass. 600 . Holland v. Boston &amp Maine Railroad, 279 Mass. 342 , 345. There is a similar statute in Connecticut. Public Acts of Connecticut, Cumulative Supplement, 1931, Section 598a. The skidding alone is not even evidence of negligence. Lambert v. Eastern Massachusetts Street Railway, 240 Mass. 495 , 499. See James v. Von...