Martin v. Klein, Civ. A. No. 58-807.

• Decision Date: 08 May 1959
• Docket Number: Civ. A. No. 58-807.
• Parties: Noel Bleeker MARTIN v. Charles R. C. KLEIN et al.
• Court: U.S. District Court — District of Massachusetts

172 F. Supp. 778

Noel Bleeker MARTIN v. Charles R. C. KLEIN et al.

Civ. A. No. 58-807.

United States District Court D. Massachusetts.

May 8, 1959.

Raymond F. Barrett, Quincy, Mass., for plaintiff.

Ralph H. Willard, Willard, Peterson, Goodspeed & Cameron, Boston, Mass., for defendant.

ALDRICH, District Judge.

In this action arising out of a collision of automobiles the plaintiff moves for new trial after verdict for the defendant. Plaintiff's first point is that the record shows the jury this term has been uniformly "defendant-minded." This in itself, of course, is not a ground for setting aside a verdict. At the most it invites a more tolerant reception, perhaps, of plaintiff's argument on his motion, particularly if his argument were that the verdict was against the evidence. However, his argument fell principally into two different categories—1) that there was no evidence that plaintiff's car was moving; 2) that he had "newly discovered evidence" to the effect that the police officer's testimony as to the terrain, hereinafter referred to, was erroneous.

With respect to the first point, plaintiff has had the transcript typed since the argument. Called on cross-examination by the plaintiff, the defendant testified:

"Q. You first saw the car 2 feet from you, is that correct? A. I would say Yes. I mean it was like that snapping fingers, 2 feet, moving."

On cross-examination by his own counsel:

"Q. When you got this glimpse of it was the plaintiff's car moving or stopped? A. I would say it would be moving."

Defendant may not have had much opportunity to observe, but there was no motion to strike, and the weight of this testimony was for the jury. Furthermore, the evidence was clear to the effect that after the accident the front wheels of the plaintiff's car were on the black top. Applying my rudimentary comprehension of the laws of physics I do not believe that his car would be on the black top after the accident unless it either had been moving into the intersection, or had been on the black top prior to the accident. Thus, if the plaintiff was not moving, one must take his testimony that he had come out of a driveway and was resting for three or four minutes protruding into a travelled highway in so blind a spot that he could see approaching cars to his left for only 15-20 feet or so. On this record I could not say that there was not substantial evidence of contributory negligence however one views it.

With regard to the terrain, the plaintiff introduced photographs taken a year and eight months after the accident. If one were to be technical, one would say that the burden was on him to prove that the terrain had remained the same, rather than on the defendant to disprove it. Passing this point, the police officer who came immediately to the scene was put on by the plaintiff, and he testified specifically that the terrain had changed since the...