Leveillee v. Wright
| Citation | 15 N.E.2d 247,300 Mass. 382 |
| Parties | LEVEILLEE et al. v. WRIGHT. LAMOTTE v. SAME. |
| Decision Date | 26 May 1938 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Worcester County; Broadhurst, Judge.
Action of tort by Rose Leveillee and another, administrators, against Raymond Wright to recover for death of Delia Leveillee, consolidated with an action of tort of Joseph G. Lamotte against Raymond Wright to recover for damage to plaintiff's automobile. The jury returned a verdict for the plaintiff in each case in the amounts, respectively, of $5,422.50 and $750. On defendant's exceptions.
Exceptions overruled.H. H. Hartwell and C. E. Tupper, both of Worcester, for plaintiffs.
J. J. MacCarthy, of Worcester, for defendant.
These are two actions of tort which were tried together to a jury. The cases are consolidated in a single bill of exceptions which is stated to contain all the evidence material to the issues raised. The first case is for the death of Delia Leveillee, a count for conscious suffering having been waived. The second case is brought by the owner to recover for damage to his automobile, in which the deceased was riding. The defendant in each case seasonably presented a motion for a directed verdict, both of which were denied subject to the defendant's exceptions. The jury returned a verdict for the plaintiff in each case. The accident occurred in Worcester.
Upon evidence most favorable to the plaintiffs, the jury could have found the following facts. On Friday, December 29, 1933, the defendant was operating his truck in a westerly direction on the main highway between Boston and Worcester. About five o'clock in the afternoon, as he was crossing the Lake Bridge over Lake Quinsigamond between Shrewsbury and Worcester, the bridge being a part of the main highway, his truck became disabled by reason of a broken axle. The defendant left his truck at the place on the bridge where it became disabled, and it remained there without lights of any kind until sometime after the accident, which occurred at about one thirty o'clock on Sunday morning, December 31. On Friday evening the defendant removed the load of meat from the truck and made some desultory but ineffectual efforts to have the truck removed from the bridge. On Saturday evening at about eleven o'clock, he went to the truck for the purpose of installing a new axle but gave up the attempt because of the cold, and left the truck in the same position in which it had been since Friday, and without any lights, although the lights were ‘working and there was nothing the matter with them.’
On the evening of December 30, the plaintiff Lamotte lent his automobile to his grandson, Joseph S. W. Lamotte, hereinafter referred to as Lamotte, for the latter's own purposes and not on any business of the plaintiff Lamotte. Lamotte, together with one Adams, Hazel Yabsley, who has since married Lamotte, and the deceased, drove to a cottage on the shore of Lake Quinsigamond where they remained until about midnight. It was a very cold night. When they left the cottage, Lamotte turned on the heater in the automobile and the heat from it, together with the vapor from the breaths of the occupants, caused the windshield ‘to steam up.’ They drove to a ‘diner’ in Shrewsbury, located about three hundred yards from the Shrewsbury end of the bridge, where they had something to eat, remaining there until about one twenty-five o'clock in the morning of December 31. When they left the ‘diner’ to return to Worcester, the same conditions prevailed as to ‘steam from the heater and their breaths forming on the windshield,’ and immediately before the accident, which occurred at one thirty o'clock, the windshield was ‘fogged’ on its inside. Lamotte was driving and Miss Yabsley was seated on his right. Adams was seated on the rear seat directly behind Lamotte, with the deceased on his right. The snow, which had fallen a day or so before, had been plowed toward the northerly sidewalk on the bridge, leaving a pile which extended four feet from the curb into the travelled way. The roadway, except for this snow bank, was fairly clear, although there were spots of ice on the ‘driving part’ of the road. The defendant's truck was standing in a dark spot between two of the bridge lights and about thirty feet from the westerly or Worcester end of the bridge, which was nine hundred fourteen feet long, with the right side of the truck parallel to the pile of snow, four feet in width, and with its lift side out to the northerly rail of the double car tracks which crossed the bridge. Its rear end was open, there were no lights and no reflector on it, and it stood in the same position where it had been left on Friday. There were twenty street lights on the bridge, ten on each side, spaced at varying distances, and all were lighted at the time of the accident. Lamotte was driving at a speed of from twenty-five to thirty miles an hour, with the right side of his automobile about a foot from the bank of snow and the left side just inside or outside the car rail, when he saw the defendant's truck about twenty to twenty-five feet ahead of him but could not tell whether it was in motion or not. He turned his automobile sharply to the left in order to clear the truck. The front half did clear it but the rear skidded on some ice and came in contact with the rear corner of the truck. The back of the automobile was torn off, the deceased was thrown to the roadway and killed. Lamotte did not apply his brakes at any time before the collision but attempted to make a left swing in order to pass the truck. He testified that the lights of his automobile would show up objects in the road seventy-five feet ahead but because of the ‘steam’ on the windshield he could not see ahead over twenty-five feet on the bridge, although if automobiles were approaching him he could see the lights. He also testified that he would not say that he was driving at a rate of speed faster than would have permitted him to stop his automobile in the distance he could see ahead, the distance referred to in the question asked him being twenty feet.
The only evidence in the record which relates in any way to the conduct of the deceased came from Adams, one of the occupants of the automobile, who testified that he was talking with her; that no one in the automobile at any time prior to the accident made any remonstrance to Lamotte as to the speed or manner in which the automobile was being operated; that he did not hear the deceased make any remonstrance and did not know that she did.
A question of evidence is presented by the defendant's exception to the admission in evidence of a copy of the traffic rules of the city of Worcester, certified to by the city clerk, which provided that there shall be no parking at any time on the Lake Bridge at the location where the accident occurred. As the defendant contends, there was no evidence introduced as to what constitutes parking within the meaning of the rule. Relying upon this fact and the absence of any statutory definition of the word ‘parking,’ he argues that in view of the circumstances, which required him to leave his truck in the proscribed area, of the weather conditions and of his efforts to remove or repair the truck, there was no evidence to warrant the jury in finding that he had violated the rule. In Opinion of the Justices, Mass., 8 N.E.2d 179, it was said (page 181): In the case of Commonwealth v. Rice, 261 Mass. 340, 345, 158 N.E. 797, 55 A.L.R. 1128, decided in 1927, from which the above quotation in Opinion of the Justices, supra, is taken, the word ‘parking’ did not appear in the ordinance which the defendant was found guilty of violating. The ordinance related to taxicab stands, the licensing of cab owners to occupy these stands and the general regulation of their use; and the words of the ordinance, to which the word ‘parking’ as used in the opinion refers, are ‘to remain standing.’ See Falk v. Finkelman, 268 Mass. 524, 168 N.E. 89;Milbury v. Turner Centre System, 274 Mass. 358, 174 N.E. 471, 73 A.L.R. 1070;Commonwealth v. Ober, 286 Mass. 25, 26, 32, 189 N.E. 601. The cases at bar do not call for a precise definition of the word ‘parking’ so as to apply the meaning to all cases which may arise. See Wonewoc v. Taubert, 203 Wis. 73, 233 N.W. 755;Martin v. Oregon Stages, Inc. 129 Or. 435, 277 P. 291;Townsend v. Jaloff, 124 Or. 644, 264 P. 349;Bowmaster v. Wm. H. De Pree Co. 252 Mich. 505, 233 N.W. 395;Birmingham v. Hood-McPherson Realty Co., 233 Ala. 352, 172 So. 114,108 A.L.R. 1152. We think that whether an automobile standing in the highway is parked or not must be determined from all the circumstances including the reason why it is so standing. By ‘parking’ is meant something more than a mere temporary and reasonable stop for a necessary purpose, including a stop resulting from mechanical trouble. But the reasonableness of a temporary or involuntary stop, including the length of such a stop, must also depend upon the circumstances surrounding it. We think that in the cases at bar it could not have been ruled as matter of law that the ordinance had not been violated and that it was a question of fact for the jury to determine, under suitable...
To continue reading
Request your trial