Mansell v. Larsen
| Decision Date | 28 May 1942 |
| Citation | 42 N.E.2d 520,311 Mass. 607 |
| Parties | ANNA M. MANSELL v. KENNETH LARSEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
April 13, 1942.
Present: FIELD, C.
J., DONAHUE, DOLAN COX, & RONAN, JJ.
Practice, Civil Charge to jury; Requests, rulings and instructions Exceptions: general exception.
From instructions to the jury at the trial of an action for damages resulting when the plaintiff's automobile, as he was turning to his right to enter an intersecting street, was struck from behind on that side by the defendant's automobile, the jury must have understood that, in determining the issues of negligence of the defendant and contributory negligence of the plaintiff, they were to consider the whole evidence including violation by the defendant of the statutory law of the road; and therefore an exception by the plaintiff to a refusal to give in terms a ruling based on the statute and a general exception to the charge on the subject were overruled.
TORT. Writ in the Municipal Court of the City of Boston dated September 2, 1938.
On removal to the Superior Court, the case was tried before Sheehan, J.
F. D. Harrigan, for the plaintiff.
D.
H. Fulton, for the defendant, submitted a brief.
The plaintiff allegedly sustained injuries when her automobile which she was operating, was in collision with an automobile operated by the defendant. In the action, tried with this case, that was brought by the plaintiff's companion against the defendant, the jury returned a verdict for the plaintiff, but in the case at bar, the verdict was for the defendant. The plaintiff's exceptions are to the alleged failure of the trial judge to give her second request, and to portions of his charge.
The collision occurred at Kenmore Square, in Boston, near the intersection of Deerfield Street with Commonwealth Avenue "as this avenue is traversed by Beacon Street," and at a point where the outbound section of the avenue is about fifty-two feet wide from the curb to the reservation that divides it. There was evidence that the plaintiff was proceeding westerly on Commonwealth Avenue, intending to turn to her right into Deerfield Street. She signalled with her hand that she was making a right turn, and was proceeding on a "slant," when the automobile operated by the defendant, which had been following her, collided with the right side of her automobile and passed it.
Traffic lights control the movement of traffic in and about Kenmore Square, and there seems to have been no question that at the time of the collision these lights indicated that traffic was to proceed out Commonwealth Avenue, into Beacon Street or Brookline Avenue, or to the right into Deerfield Street. The evidence was conflicting as to where the two automobiles were in the roadway just before the collision. There was evidence that the plaintiff was on the right-hand side of the street. There was other evidence that she was travelling in the center lane of the outbound side of Commonwealth Avenue, and also that she was in the third lane from the curb. The plaintiff testified that when she signalled for the right turn, the defendant's automobile was "coming up in back of her about six or eight car lengths," and that he was "directly" back of her.
There was other evidence that when the plaintiff signalled for the turn, the defendant's automobile was on her right. The defendant, without objection, introduced in evidence certain rules of the Boston traffic commission, presumably adopted in accordance with the provisions of St. 1929, c. 263. It could have been found that the defendant was travelling at a rate of speed greater than was reasonable and proper.
The plaintiff's second request, which she alleges the trial judge failed to give, was that "Under the Law of the Road, Chapter 89, Section 2, the defendant was forbidden to pass the plaintiff's car on the right and under the law he was required to drive a safe distance to the left of the plaintiff's car and his conduct was a violation of the Statute and such violation is evidence of negligence on his part." The bill of exceptions contains the charge to the jury, "so far as material." The jury were told, in effect, that Section 2 of said c. 89 (see St. 1933, c. 301) provides that the driver of a vehicle, passing another vehicle travelling in the same direction, shall drive to the left if there is sufficient room, and that the other driver shall not wilfully obstruct him. The judge then read to the jury the traffic rules that were in evidence and instructed them as follows: The judge was not required to give the plaintiff's second request in its precise language. It appears from what he did say that the jury was to take into consideration the traffic rules, and that it was for them to say, upon all the evidence, whether the defendant was negligent in the circumstances that existed at the time. The jury were told that if there was a violation on the part of the defendant or on the part of the plaintiff of any provision of the statute, and that violation contributed to the injury, that would be negligence on the part of the violator. We are of opinion that the plaintiff's second request was adequately dealt with at the time. Smith v. Conway, 121 Mass. 216 , 218, 219. Anzoni v. Gosse, 274 Mass. 522 , 525. See Gallagher v. Wheeler, 292 Mass. 547 , 554, 555.
The judge dealt with the question of negligence, the reciprocal duties of the operator of each automobile, the question of speed, and the obligation of one approaching an intersection of streets, to the evident satisfaction of all parties. When he had finished, he asked counsel if there was anything he had not said that they thought he should say, and the plaintiff, in addition to excepting to the alleged failure to give her second request, also excepted to the part of the charge hereinbefore quoted. There seems to have been a conference between the judge and ...
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