Kneizys v. Stone

• Decision Date: 29 March 1937
• Citation: 7 N.E.2d 425,297 Mass. 31
• Parties: KNEIZYS v. STONE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 31

7 N.E.2d 425

KNEIZYS

v.STONE.

Supreme Judicial Court of Massachusetts, Suffolk.

March 29, 1937.

Exceptions from Superior Court, Suffolk County; Morton, Judge.

Action of tort by Anthony F. Kneizys, administrator, against Harold S. Stone. A verdict was ordered for the defendant, and the plaintiff brings exceptions.

Exceptions overruled.W. H. Healey and H. Traverse, both of Boston, for plaintiff.

R. L. Mapplebeck, of Boston, for defendant.

PIERCE, Justice.

This is an action of tort, in two counts, in which the plaintiff, as administrator, seeks to recover for the death and conscious suffering of his intestate, Joseph Wollongavich. A trial was had to a jury in the superior court. At the conclusion of the plaintiff's evidence the defendant offered and the judge received the auditor's report, which was not read to the jury. The defendant then presented a motion for a directed verdict, which was allowed subject to the plaintiff's exception.

The bill of exceptions contains the declaration, the answer of the defendant (which was a general denial and an allegation of contributory negligence) and certain exhibits, introduced at the trial but not specifically incorporated in the bill. It also contains all the evidence material to the issue raised in its aspect most favorable to the plaintiff, and the auditor's report.

The evidence warranted, in substance, the finding of the following facts: On April 2, 1935, at about 7:30 P. M. the deceased was walking on C street in South Boston, Massachusetts, carrying on his shoulder a railroad tie about seven feet long. This tie projected some three feet or three and a half feet in front and in back of him. He was approaching the intersection of C street and West Broadway. West Broadway runs approximately north and south; it has two sets of car tracks in its center and is fifty-four feet wide. C street runs east and west. The deceased was proceeding in a westerly direction. The defendant was driving his automobile north on West Broadway and was about fifteen feet from the curb. He first observed the deceased when he was about thirty or forty feet away and was about to enter the intersection of West Broadway and C street, with the apparent intention of crossing it. The defendant slowed down and blew his horn. The deceased stopped. He was then two or three feet out on West Broadway at C street. The defendant then increased his speed from five to ten miles an hour to twelve to fifteen miles an hour, and proceeded onward until the front of his automobile had passed the deceased, without hitting him or the tie which he was carrying. When the rear part of the automobile was opposite the deceased, the tie, which the deceased was carrying on his shoulder, struck or was struck by the rear right door of the automobile. This contact threw the deceased to the ground and caused personal injuries from which he died.

If the testimony of the defendant was disbelieved the testimony for the plaintiff was not sufficient to warrant a finding that the defendant, at the time of the collision, was unnecessarily and negligently driving too near the place where the deceased was standing, in view of the situation which was manifest to the defendant. Aside from the auditor's report there is no evidence as to exactly what occurred from the time the deceased...