Kerr v. Palmieri

• Decision Date: 31 March 1950
• Citation: 325 Mass. 554,91 N.E.2d 754
• Parties: KERR v. PALMIERI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 554

91 N.E.2d 754

KERR v. PALMIERI.

Supreme Judicial Court of Massachusetts, Middlesex.

March 31, 1950

Argued March 8 1950.

S S. von Loesecke, Boston, J. L. Shea, Boston, for plaintiff.

T. H. Donohue Boston, for defendant.

Before QUA, C. J and LUMMUS, RONAN, WILKINS and COUNIHAN, JJ.

WILKINS, Justice.

This is an action of tort to recover for personal injuries and property damage arising out of a collision between an automobile owned by the plaintiff and one owned and operated by the defendant. The judge found for the plaintiff, the Appellate Division dismissed a report, and the defendant appealed.

The collision occurred on April 17, 1947, on Union Avenue, Framingham. The plaintiff's evidence tended to show that his automobile was parked parallel with and close to the curb at the right that he was sitting in the automobile in conversation with another man seated beside him; that his wife, who had been driving, was shopping and had taken the keys to the automobile; that he had started to get out, had opened the left front door five or six inches and was so holding it when the defendant's automobile came along, 'clipped' the plaintiff's left rear mudguard, struck the partly open door, pushed the plaintiff's automobile forward three feet, and pushed in the door frame, throwing the plaintiff forward, bending the steering wheel, and breaking off the guard which controlled the light indicating a left turn. The side of the plaintiff's automobile was scraped, and the cowl jammed. When the plaintiff was thrown forward, he received 'an awful blow on the head', his knees hit the dashboard, seven upper front teeth were loosened, two broken off, and a lower tooth chipped. Before the accident his teeth were in good condition. The plaintiff's automobile was parked eight inches inside the outer white line of the parking space. It had no running board, and the door, as the plaintiff held it, did not protrude beyond his rear fender. After the accident, both automobiles were nearly side by side, part of the front end of the defendant's automobile being ahead of the plaintiff's and headed toward it.

The defendant now contends that, as he was passing, the plaintiff suddenly opened the door, causing it to strike the defendant's right rear fender. Following the collision, according to the plaintiff's testimony, the defendant took the position that the plaintiff was pulling out of the parking space, and, according to the testimony of a police officer, the defendant said, 'I didn't run into him. He ran into me.' The police officer testified that the only damage to the defendant's automobile was the front part of the right rear fender. The defendant testified that there were two lines of automobiles moving along Union Avenue in the direction in which he was proceeding; that he was in the right lane ten to fifteen feet behind another automobile; that he saw the parked automobile of the plaintiff, but did not see the door 'opened'; and that other automobiles were parked in the rear of it.

1. The defendant requested the ruling: '3. Upon all the evidence and the law, the court would not be warranted in finding that the defendant was negligent.' The judge made the following disposition: 'Upon all the evidence I find that the plaintiff sustained the damage to his automobile and his personal injuries through the negligent operation by the defendant of his car and that the plaintiff was in the exercise of due care. As I found the defendant negligent as a matter of fact and the plaintiff free from negligence as a matter of fact, I deny the defendant's three requests for rulings of law and treat them as immaterial because of my finding in favor of the plaintiff on the facts.' There was no error in this respect. Horton v. Tilton, 325 Mass. 79, 88 N.E.2d 905.

Although there was not much direct evidence as to the conduct of the defendant in driving his automobile, the judge could find that he drove too near to the plaintiff's stationary automobile, which he saw, and struck the plaintiff's automobile. This being done with the force indicated by the plaintiff's injuries and damage to his automobile was enough to permit a finding of negligence. Washburn v. R. F. Owens Co., 252 Mass. 47, 54, 147 N.E. 564; Bryne v. Great Atlantic & Pacific Tea Co., 269 Mass. 130, 131, 168 N.E. 540; Hendler v. Coffey, 278 Mass. 339, 340-341, 179 N.E. 801; Jennings v. Bragdon, 289 Mass. 595, 597-598, 194 N.E. 697; Lech v. Escobar, 318 Mass. 711, 63 N.E.2d 891. See Gangi v. Adley Express Co., 318 Mass. 762, 764, 63 N.E.2d 897.

2. The evidence, except for photographs of the automobiles, was closed and the case submitted without argument on January 26, 1948. It was arranged that the defendant's counsel would send the photographs first to the plaintiff's counsel, and this was done on January 28, 1948. On February 3, 1948, the plaintiff's counsel sent the photographs to the judge and asked that a view be taken of the plaintiff's automobile. On May 1, 1948, the judge took a view, and the photographs were marked as exhibits. The judge then made the following notation: 'Case closed as far as evidence.'

On July 17, 1948, after hearing, the judge allowed the plaintiff's motion to reopen the case. The reason stated in the motion was that, at the time of the trial, records of hospitals of the veterans administration were not admissible, but subsequently had become so. St. 1948, c. 74. The motion asked that the 'case be reopened and such evidence and any other matters pertaining to personal injuries of the plaintiff be heard.'

As a general proposition, the granting of a motion to permit additional evidence to be introduced after the trial has been closed rests in the discretion of the trial judge. Reynolds v Missouri, Kansas & Texas Railway Co., 224 Mass. 379, 387, 113 N.E. 413; Short v. Farmer, 260 Mass. 102, 104, 156 N.E. 735; Finnegan v. Checker Taxi Co., 300 Mass. 62, 69, 14 N.E.2d 127. See DiAngelo v. United Markets, Inc., 319 Mass. 143, 146, 64 N.E.2d 619. The defendant does not question this, but urges that the allowance of this particular motion was erroneous as matter of law. His first objection, that the statute concerning the records of a hospital of the veterans administration could not be given what he describes as retroactive effect, is untenable. The statute relates to the admissibility of evidence, is, therefore, procedural, and operates to affect pending cases. E. B. Horn Co. v. Assessors of Boston, 321 Mass. 579, 584, 74 N.E.2d 421, and cases cited. There is nothing in the argument that the grounds stated in the motion are insufficient, The motion did not need to specify any ground. Finally it is urged that the judge was without power to...