Leveillee v. Wright

• Decision Date: 26 May 1938
• Citation: 15 N.E.2d 247,300 Mass. 382
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: PETER LEVEILLEE & another, administrators, v. RAYMOND WRIGHT.

300 Mass. 382

15 N.E.2d 247

PETER LEVEILLEE & another, administrators, v. RAYMOND WRIGHT.

Supreme Judicial Court of Massachusetts, Worcester.

May 26, 1938

March 9, 1938.

Present: RUGG, C.

J., FIELD, LUMMUS DOLAN, & COX, JJ.

Negligence Violation of law, In use of way, Motor vehicle, Contributory Of bailee. Motor Vehicle, Parking. Way, Public: parking. Proximate Cause. Bailment. Words, "Parking."

An ordinance of a municipality prohibiting "parking" at any time on a certain bridge properly was admitted in evidence at the trial of an action for injuries received in a collision with a motor truck which, after it had broken down, had been left unattended on the bridge for over thirty hours, the question whether there was a parking in violation of the ordinance being for the jury.

Evidence that a disabled motor truck was left unattended on a highway bridge for over thirty hours in violation of a municipal ordinance and with no lights at night in violation of G.L. (Ter. Ed.) c. 85, Section 15; c. 90,

Section 7, as amended, warranted findings of negligence of the operator of the truck, and that such negligence was a proximate cause of injury which occurred when an automobile ran into the truck in the night time.

An action against the owner of a motor truck for causing the death of a guest in an automobile which ran into the truck was not barred by negligence of the operator of the automobile contributing to cause the collision, if the evidence did not require a finding that the decedent surrendered all care to the operator or was guilty of contributory negligence.

The bailor of a motor vehicle may recover for damage to it caused by a collision resulting from the concurrent negligence of the bailee and the operator of a second vehicle, if the bailee at the time of the collision was not acting as the bailor's agent.

TWO ACTIONS OF TORT. Writ in the first action in the Superior Court dated January 22, 1934; that in the second action in the Central District Court of Worcester dated February 23, 1934.

On removal of the second action to the Superior Court, the two were tried together before Broadhurst, J. The record included no requests for rulings. The judge denied motions that verdicts be ordered for the defendant. There were verdicts for the plaintiffs in the sums, respectively, of $5,422.50 and $750. The defendant alleged exceptions.

J. J. MacCarthy, for the defendant. H. H. Hartwell, for the plaintiffs, administrators.

C. E. Tupper, for the plaintiff Joseph G.

Lamotte, submitted a brief.

COX, J. 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 left 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 and 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, 297 Mass. 559 , 563-564, it was said: "The parking of automobiles has become a considerable problem in the regulation of traffic on highways. Ordinances and by-laws undertaking to govern parking have been widely adopted. Even before the common use of automobiles, ordinances limiting the time during which a vehicle could stop on the public way were adopted and enforced. . . . With respect to the parking of automobiles it has been held that `No right of any citizen is impaired by an ordinance which prohibits the parking of vehicles . . . [in the circumstances described].' Commonwealth v....