Massie v. Barker

• Decision Date: 21 June 1916
• Citation: 113 N.E. 199,224 Mass. 420
• Parties: MASSIE v. BARKER (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 420

113 N.E. 199

MASSIE

v.BARKER (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

June 21, 1916.

Exceptions from Superior Court, Middlesex County; Wm. F. Dana, Judge.

Actions by John C. Massie and Mabel A. Massie against Charles K. Barker. Verdict for plaintiffs, and defendant excepts. Exceptions overruled.

1. HIGHWAYS k172(1)-AUTOMOBILE ACCIDENTS-CARE REQUIRED OF AUTOMOBILE DRIVER.

The conduct required of drivers of motor vehicles is that of a reasonably prudent person; but no one can drive motor vehicles amid the distractions and dangers of modern highways and streets who is not reasonably steady of nerve, quick in making a decision, and calm in executing it.

[Ed. Note.-For other cases, see Highways, Cent. Dig. ss 459, 460; Dec. Dig. k172(1).]

2. HIGHWAYS k184(3)-AUTOMOBILE ACCIDENTS-QUESTION FOR JURY-NEGLIGENCE OF DRIVER.

Where a motor truck driver testified to coming up behind a wagon to pass it at eight to twelve miles an hour, and, being disconcerted by a dog jumping in front of the car so that he instinctively turned, and before he could turn back hit the wagon, claiming the truck skidded, his negligence was for the jury.

[Ed. Note.-For other cases, see Highways, Cent. Dig. ss 473-474; Dec. Dig. k184(3).]

Martin T. Hall, of Boston, for plaintiffs.

Peabody, Arnold, Batchelder & Luther, of Boston, for defendant.

RUGG, C. J.

No question is made as to the due care of the plaintiffs. The only controverted point is whether the defendant's servant, who was acting within the scope of his authority, might have been found on the evidence to have been negligent in operating a motor truck. The plaintiffs were riding in a wagon and, having turned to the right in response to a warning horn, were injured by a collision with the motor truck coming from behind. Neither of the plaintiffs saw the impact. The defense that there is nothing to warrant a finding of negligence on the part of the driver of the truck, rests upon this evidence proffered by the defendant through the driver of the truck:

‘I first observed the wagon when I was a couple of hundred feet back of the team going down hill. I was traveling between eight and twelve miles an hour. As I approached the wagon I was to the left of the center of the road, and the wagon was to the right of the center of the road. As I got practically opposite the wagon, just as I was passing, a large sheep dog * * * jumped in front of the car. On the impulse of the moment I just yanked the car a fraction to prevent hitting the dog, and as I righted the car up again the next moment I skidded, and the top of my rear mud guard hit the left front wheel of thewagon. * * * I felt a jar when the car struck the wagon, and immediately applied the brake. I had gone by that house before and I had seen dogs there before. * * * I made up my mind that I would pass them [the Massies] with about two or three feet between me and the team. * * * The dog that ran out is a large sheep dog. My best estimate is that he might have stood twentyfour inches from the ground. * * * I saw the dog when he came out of the drive. I heard the dog bark when he jumped out of the drive. I was paying particular attention at that time to passing the Massies. * * * A very small fraction of a minute elapsed from the time I first saw the dog and the time I turned my machine. For the fraction of a minute I did not think of the Massies. I only knew it was the impulse of the moment not to...