Lekarczyk v. Dupre
| Decision Date | 20 November 1928 |
| Citation | 265 Mass. 33,163 N.E. 642 |
| Parties | LEKARCZYK v. DUPRE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Hampshire County; R. W. Irwin, Judge.
Action by Andrew Lekarczyk, administrator of the estate of Franciszek Szczygiel, deceased, against George D. Dupre. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.T. C. Maher and J. A. Frankowski, both of Holyoke, for plaintiff.
W. H. Brooks, of Holyoke, and J. P, Kirby and E. S. Searle, both of Springfield, for defendant.
This is an action of tort to recover damages for the death of Franciszek Szczygiel, the plaintiff's intestate, alleged to have been caused by the negligent operation of a Ford automobile truck by one Louis Dupre, who, it was alleged, was an employee of the defendant. A second count for conscious suffering was waived at the trial. The defendant's answer is a general denial and the contribvutory negligence of the plaintiff's intestate.
The case is before this court on exceptions taken by the defendant to the refusal by the trial judge, at the close of all the evidence, to direct a verdict for the defendant; to the admission in evidence on behalf of the plaintiff of an insurance policy and application therefor insuring George Dupre against liability, as owner of the automobile which figured in the accident; to the admission of the evidence of the town clerk of Easthampton that Mrs. Dupre, mother of George, had not filed a married woman's certificate in the office of the town clerk of Easthampton; and to the refusal by the judge to admit on behalf of the defendant a bill of sale of a bakery business and the appliances and utensils to Mrs. Dupre. All the material evidence is contained in the bill of exceptions.
At the trial it was not in dispute that the plaintiff's intestate came to his death through a collision, on Everett street in Easthampton, with a Ford automobile truck, owned by the defendant, registered in his name, and operated by Louis Dupre, a brother of the defendant, while acting within the scope of his employment in ‘Dupre's Bakery’ business.
On the motion for a directed verdict, the evidence upon the issue of the intestate's due care and the negligence of the driver of the car, in its aspect most favorable to the plaintiff, warranted the jury in finding the following facts: The intestate at the time of the collision was a man about 38 years old, about 6 feet tall, and weighed about 175 pounds. Everett street in Easthampton is a public highway running easterly and westerly and is straight and level for a distance of several hundred feet easterly from the place of the accident. It is 40 feet wide, the roadway being 27 or 28 feet wide. There is a row of buildings on the southerly side of the street, numbered 40, 42, 44, 46, and 48. The street is intersected on its southerly side at a point of about 80 feet westerly from the place of the accident, by Franklin street, and at a point about 50 feet easterly therefrom it is intersected on the southerly side by Lovell street. A cemetery extends along its northerly side. Parsons street leads off Everett street and runs north. Colton's mill is about seven or eight minutes' walk westerly from the place of the accident. The most direct route from Colton's mill to Parsons street is over Everett street going easterly. There is only one manhole and it is in front of Franklin street and is in line with the second telegraph pole from the hydrant. There are no crosswalks on that portion of Everett street which is shown on the plan. To get to the home of the intestate on Parsons street from the place of the accident he would have to go along Everett street quite a distance. The accident happened on June 1, 1925, at about half after 5 or a quarter before 6 in the afternoon.
The intestate, who was employed at Colton's mill, left the place of his work at about half after 5 in the afternoon and on his way home traveled easterly on the northerly side of Everett street. ‘It was very stormy, raining and blowing pretty hard;’ the storm had been going on for some time with the wind from the west. The intestate held an umbrella over his right shoulder and back of his head, pointed in the direction of the oncoming storm, in such a way that it did not obstruct his view of anything approaching him on Everett street from the east. When he reached a point about 100 feet easterly of the intersection of Franklin and Everett streets, and west of Lovell street, he left the sidewalk to cross the street to the southerly side. He reached a point a little past the middle of the street when he was struck by the defendant's truck.
The defendant's truck passed another truck going westerly on Everett street, at a ravine about 300 feet east of the place of the accident and 470 feet from the manhole. At this time the defendant's truck was going 30 or 35 miles an hour, and continued at the same rate of speed as it passed Lovell street and until it struck the intestate, at a point somewhere between 46 and 48 Everett street. When the intestate left the sidewalk the truck was 200 feet away from him. The driver testified:
‘I could see the whole road, the rain didn't bother me at all in seeing.’ ‘I sounded a horn when I went by the truck but I didn't blow it after thet.’ ‘I thought it was dangerous to drive over 15 miles in the rain.’ ‘I was going * * * at that rate when I hit him.’
By the force of the blow the skull of the intestate was fractured, one of his legs was broken in two places, his body was thrown onto the hood of the truck, he was carried about 90 feet,...
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