Lonergan v. American Ry. Express Co.

• Decision Date: 20 September 1924
• Citation: 144 N.E. 756,250 Mass. 30
• Parties: LONERGAN v. AMERICAN RAILWAY EXPRESS CO. HARTNETT v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

250 Mass. 30

144 N.E. 756

LONERGAN

v.AMERICAN RAILWAY EXPRESS CO.

HARTNETT

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 20, 1924.

Report from Superior Court, Suffolk County; R. F. Raymond, Judge.

Two actions of tort, by Elizabeth A. Lonergan, administratrix, and by Margaret A. Hartnett, respectively, against the American Railway Express Company, arising out of running down of pedestrians by motor truck on sidewalk. There were verdicts for plaintiffs, and defendant filed motions for new trial, which were denied. On report. Exceptions taken at trial overruled, and action of judge on motions for new trial affirmed.E. H. McDermott and J. G. Palfrey, both of Boston, for plaintiffs.

A. M. Pinkham, of Boston (L. C. Sprague, of Ayer, on the brief), for defendant.

RUGG, C. J.

These are actions of tort. The writ in each case is dated February 6, 1920. The first action is brought to recover damages both for the death and for the conscious suffering of the plaintiff's intestate, a minor child, who is alleged to have been injured by the negligence of the defendant and to have died after conscious suffering. The second action is to recover for personal injuries sustained by that plaintiff through the alleged negligence of the defendant. The cause of action in each ease arose on December 25, 1919, out of the operation of an electric automobile truck by a servant of the defendant in the course of his employment in the transaction of its business on a public way. It is conceded that the persons injured were in the exercise of due care. They were walking upon the sidewalk of a public way when an electric authomobile truck in charge of a chauffeur of the defendant struck and injured them.

[1] There was evidence of negligence on the part of the chauffeur, which required the submission of that question to the jury. There was testimony tending to show that while he was driving the truck without chains at a rate of speed of from 6 to 8 miles an hour over a street slippery with ice, it ‘took a sudden jerk and dive for the sidewalk;’ that ‘there was ice at the place of the accident’; ‘that if he had had chains it would have helped some on the ice;’ that it was his habit in icy weather to put on chains; ‘that he tried to right the car, but it did not respond, so he applied his brakes;’ ‘that there were two good foot brakes;’ ‘that he applied both foot brakes and the car skidded over the sidewalk;’ that he did not put the brakes on until he had attempted to right the wheels by turning to the left; that the street was about 45 feet wide and the sidewalk 9 feet 2 inches wide, and that under ordinary circumstances he could stop the truck going at that rate of speed in 10 feet; that he was driving the truck with the left wheels in the car tracks, which were in the center of the street, and ‘the right wheels between the inner rail and the curbstone’; that when he was opposite ‘the doorway of the Osgood store something gave way in the steering gear and the truck suddenly turned to the right,’ went over whatever obstruction was caused by the curbstone, struck the building, and broke the glass in the store window. There was evidence that on the day before there had been rain and snow. There was also opinion evidence that the chauffeur under the circumstances shown could have stopped the truck within 10 feet.

[2] This question is somewhat close. But whether the chauffeur ought to have put chains on the truck, and to have applied his brakes quicker and more effectively, presented sented questions of fact for the jury. The skidding of the truck, standing alone, was no evidence of negligence. Williams v. Holbrook, 216 Mass. 239, 103 N. E. 633;Kelleher v. Newburyport, 227 Mass. 462, 116 N. E. 806, L. R. A. 1917F, 710. The jury were so instructed. The other circumstances may have been found to constitute negligence.

[3] The evidence showed and there appears to have been no dispute that the inability to control the steering gear resulted from the loss of a nut which held a portion of it in place. There was some conflict in the evidence as to the precise cause of this loss of nut and breakdown of the operative power of the steering gear. Without going over the evidence in detail it is enough to say that, taking into account all the circumstances relative to the truck and its use, it could not have been ruled as matter of law that there was not some evidence tending to show that adequate inspection of the truck by the defendant would have disclosed the source of danger and prevented the injuries.

[4][5] There was exception to the instruction to the jury that the fact that the truck was on the sidewalk might be taken ‘as evidence that it was run negligently.’ It is settled that the mere occurrence of an accident or colision on a public way is not evidence of negligence. The doctrine of res ipsa loquitur does not apply. Reardon v. Boston Elevated Railway, 247 Mass. 124, 141 N. E. 857, and cases there collected. The instruction in the case at bar must be taken in connection with the charge as a whole and with all the circumstances which the jury might have found to exist. Full instructions had been given as to the negligence of the chauffeur in the operation of the truck and of the servants in the inspection and repair of the truck. There was evidence as to the conditions attendant upon the truck being upon the sidewalk. That is an unusual place for such a vehicle to be when there has been no collision or effort to avoid a collision with another vehicle, some obstacle, or person. In such circumstances the instruction cannot be pronounced erroneous. St. Louis v. Bay State Street Railway, 216 Mass. 255, 257, 103 N. E. 639, 49 L. R. A. (N. S.) 447, Ann. Cas. 1915B, 706; Forzley v. Bianchi, 240 Mass. 36, 132 N. E. 620;Eshenwald v. Suffolk Brewing Co., 241 Mass. 166, 134 N. E. 642.

There was no error in dealing with the defendant's ninth request for instructions. To charge that there was no evidence that ‘the motor vehicle was defective prior to the time of the happening of the accident’ would have excluded from consideration the fact of the separation or coming apart of the mechanism for steering, which might under all the circumstances have been found evidence of a defective condition. Ryan v. Fall River Iron Works, 200 Mass. 188, 191, 86 N. E. 310;Hull v. Berkshire Street Railway, 217 Mass. 361, 363, 104 N. E. 747, 5 A. L. R. 1330.

The other requests were modified rightly. Examination of the entire record discloses no prejudicial error at the trial.

Certain questions of law remain to be considered in connection with motions for a new trial.

The defendant in each case is described in the writ as ‘American Railway Express Company, a corporation duly organized and existing under the laws of the state of Delaware.’ The defendant appeared generally and pleaded to the merits of the cause set forth in the declarations. Thereby the descriptive allegations of the writ respecting the defendant were admitted. G. L. c. 231, § 30. The trial proceeded before the jury in the Superior Court wholly upon the issues of general liability thus raised by the pleadings. In the first case verdict was returned in favor of the plaintiff in stated amounts both for the conscious suffering and for the death of her intestate. In the second case verdict was rendered in favor of the plaintiff. Thereafter the defendant filed a motion for a new trial in each case upon identical grounds, namely, that the verdict was (1) against the law; (2) against the evidence; (3) against the weight of the evidence; and (4) excessive in the amount of damages. These motions were argued first in June, 1921, and were reargued in May, 1922. At the latter argument the defendant raised for the first time, so far as appears, the question of its liability for the death of the plaintiff's intestate in the first case, on the ground that the American Railway Express Company was, at the time of the wrongs complained of, under the control of the federal government by virtue of acts of Congress, proclamations of the President, and general orders of the Director General of Railroads (39 U. S. Sts. at Large, 619, 645; 40 Stat. 1733 [U. S. Comp. St. 1918, § 1974a, and note]; 40 Stat. 451, 456, § 10 [U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3115 3/4j]; 41 Stat. 456, 461, § 206 [U. S. Comp. St. Ann. Supp. 1923, § 10071 1/4 cc]), and that, the recovery thus sought being for a penalty or fine and not for compensation, there could be no recovery under General Order 50A of the Director General of Railroads to the effect that actions could not be brought against him ‘for the recovery of fines, penalties and forfeitures.’ Several requests for rulings were presented raising this question. The record states that the judge ‘did not give the rulings requested and denied the motions for new trial in both cases,’ except as to reduction of damages for conscious suffering, as to which now no point arises. He then made a report of his ruling denying the motion for new trial in these words:

‘If my order denying the motion * * * for a new trial in the Lonergan Case was erroneous as matter of law on the ground that the recovery for death permitted by the Massachusetts statute is a penalty of such character that it could not be enforced against the American Railway Express Company consistently with the law applicable thereto, including the acts of Congress, proclamations of the President, and general orders of the Director General of Railroads, and that said ground...