Jackson v. Anthony

• Decision Date: 04 April 1933
• Citation: 282 Mass. 540,185 N.E. 389
• Parties: JACKSON v. ANTHONY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 540

185 N.E. 389

JACKSON

v.ANTHONY.

Supreme Judicial Court of Massachusetts, Bristol.

April 4, 1933.

Report from Superior Court, Bristol County; J. M. Gibbs, Judge.

Action by Orabelle Jackson, administratrix of the estate of James Jackson, deceased, against James W. Anthony, Jr. On report after a verdict for plaintiff.

Judgment on the verdict.

A. E. Seagrave and J. B. Kelley, Jr., both of Fall River, for plaintiff.

M. R. Brownell and O. S. Cook, both of New Bedford, for defendant.

DONAHUE, Justice.

An automobile, described in the record as a coupé, driven by the defendant in a northerly direction on a highway between Bristol and Warren in the State of Rhode Island, collided with a smaller automobile which was being driven in the opposite direction by the plaintiff's intestate, James Jackson, who was killed in the collision. The only eye witness of the occurrence who testified was the defendant, he having been called by the plaintiff. If his testimony were believed in its entirety he is not chargeable with negligence; but the jury was not bound to give it that much credit. There was further testimony descriptive of tire and other marks left by each automobile in the vicinity of the collision and testimony as to signs and marks of contact and damage on the two automobiles, which taken with portions of the defendant's testimony warranted a different conclusion. The case comes to this court upon a report after a verdict for the plaintiff and we therefore must take on contradictory evidence the version of facts most advantageous to the plaintiff.

1. The accident happened about midnight on a rainy misty night; the road was wet; mist gathered on the windshields of automobiles; visibility was poor; from his seat in an automobile a driver could just see the white line which was painted in the center of the macadam road. The defendant and three companions had during the evening visited several dance halls and were on their way home. The defendant and two of his companions were seated on the front seat and the fourth sat in the lap of the others. There was evidence from which it could be found that the defendant was under the influence of intoxicating liquor. The macadamized portion of the road was nineteen feet wide and there were dirt shoulders on each side. The defendant saw the lights of the Jackson automobile approaching at a distance of one hundred and fifty feet and saw the automobile itself when it was seventy-five feet away, at which time the defendant's coupé was traveling at the rate of thirty to thirty-three miles an hour. The defendant's coupé was then on the easterly half of the macadam, which would be the right hand side of the road in the direction in which the defendant was going. Shortly after seeing Jackson's automobile the defendant drove his coupé to his right on to the dirt shoulder and proceeded along the shoulder entirely off the macadam for a distance of twenty-five or thirty feet where it grazed a tree on the roadside seven feet five inches from the easterly edge of the macadam. It then proceeded along the dirt shoulder eighteen or nineteen feet farther where the right wheel passed over a stone and struck a tree stump which was four feet nine inches from the easterly edge of the macadam. Then without stopping it turned in a westerly direction, crossed the entire width of the macadam and came to a stop on the westerly side of the road and headed west. The defendant testified that the Jackson automobile came over on to the easterly half of the road and the collision came when the defendant's coupé was traveling on the dirt shoulder east of the macadam.

The Jackson automobile when first seen by the defendant was proceeding on the westerly half of the macadam and there was evidence which warranted the finding that there the collision occurred. On that part of the road was the greater part of the broken glass resulting from the contact of the vehicles, and, as might be found, were marks along the surface of the street made by spokes of a wheel of the Jackson car after it was broken in the collision. The location and character of marks and indications of contact and damage on both automobiles might have been found to be consistent with the Jackson car being struck while on the westerly part of the macadam by the defendant's coupé in its course across the street as earlier described. The Rhode Island statute prescribing the duty of travelers with vehicles who meet on a highway was in evidence (Gen. Laws R. I. 1923, c. 99, § 1). It is substantially the same as the Massachusetts statute (G. L. [Ter. Ed.] c. 89, § 1). While there was evidence on which the jury might have reached a contrary conclusion, we cannot say that there was not warrant for the finding that the collision occurred in the manner contended by the plaintiff. On such a finding it was for the jury to decide whether the defendant was negligent. It could not have been ruled as matter of law that the defendant's burden of proving contributory negligence of Jackson had been sustained.

2. Two automobile repairmen of long experience in the examination and repair of automobiles which had been in collision, examined both vehicles shortly after the accident. They described at length the location and character of numerous signs and marks of contact and damage which they observed. Under the defendant's exception they were permitted to give their opinion, based solely on such observations, of the manner in which the two vehicles came in contact. The ground of the objection was that the questions asked ‘called for an opinion on a matter as to which there was no occasion for evidence of opinion but as to which the jury could draw an inference from their common experience.’ The testimony of one qualifying as having expert knowledge of a subject is not admisible if that subject is of such a nature that it may be presumed to be within the common experience of men. New England Glass Co. v. Lovell, 7 Cush. 319, 321. Where jurymen would have no difficulty in forming an opinion for themselves the testimony of an expert witness has no place. Lynch v. Larivee Lumber Co., 223 Mass. 335, 340, 111 N. E. 861. On the other hand if a situation is presented on the evidence of such character or complexity that it cannot be assumed to be within the ordinary experience or knowledge of men the testimony of a qualified expert is admissible for such help as it may, if believed, give to the jury. Harrington v. Boston Elevated R. Co., 229 Mass. 421, 428, 118 N. E. 880, 2 A. L. R. 1057;Ouillette v. Overman Wheel Co., 162 Mass. 305, 38 N. E. 511;Commonwealth v. Russ, 232 Mass. 58, 122 N. E. 176;Commonwealth v. Spiropoulos, 208 Mass. 71, 72, 94 N. E. 451. Ordinarily the exterior indications of the point of contact of two colliding vehicles would be likely to furnish a jury with grounds on which they, without aid, might draw all justifiable inferences as to the angle of incidence of the vehicles at the time of the impact and the portions thereof first in contact. The evidence here shows damage to so many different portions of the vehicles, exterior and interior, involving structural parts, some of which are not ordinarily seen and whose strength of resistance to force can hardly be said to be within common knowledge, that we cannot quite assume that the experience and knowledge of the jurors as intelligent men and versed in the ordinary affairs of life would not be instructed and aided by expert testimony. On the particular circumstances here appearing the exceptions to the admission of evidence must be overruled.

3. A right of action was given by a Rhode Island statute to the plaintiff as administratrix for the wrongful act of the defendant committed within that State causing the death of the intestate, who was her husband. Rhode Island G. L. (1923) c. 333, § 14, provides that whenever the death of a person shall be caused by a wrongful act, neglect or default of another which if death had not ensued would have entitled the party injured to maintain an action and recover damages, the...