McGovern v. Tinglof

• Decision Date: 06 April 1962
• Citation: 344 Mass. 114,181 N.E.2d 573
• Parties: William McGOVERN v. Carl TINGLOF, Junior, Administrator.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 573

181 N.E.2d 573

344 Mass. 114

William McGOVERN v. Carl TINGLOF, Junior, Administrator.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Feb. 7, 1962.

Decided April 6, 1962.

Lewis G. Pollock, Boston, for plaintiff.

Walter F. Henneberry, Weston, for defendant.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, and KIRK, Jj.

SPALDING, Justice.

The auditor, to whom this case was referred under the usual rule, found as follows: On the day of the accident (October 25, 1956) the plaintiff was manager of the U.T.C. filling station at the corner of Riverway and Huntington Avenue in Boston. ¹ The station 'is situated on the right hand side as one travels from Brookline on Washington Street toward Boston on Huntington Avenue which is a continuation of Washington Street at the Brookline-Boston line.' The two streets are part of Route 9, known as the Worcester Turnpike. 'As one approaches the Boston line from Brookline the highway is divided into easterly and westerly lanes by an iron picket fence. There is room for four lanes of traffic on either side of the dividing fence. At the end of this * * * fence at the time of this accident, traffic was allowed to make a U turn from the easterly bound lane to the westerly bound lane. Beyond this Huntington Avenue goes under the overpass of the Jamaicaway. On the other side of this overpass on the right as one goes under * * * [it] heading toward Boston, is a street known as the Riverway. At the junction of the Riverway and Huntington Avenue is situated the filling station which was the scene of this accident. On the curving corner of the intersection of the Riverway and Huntington Avenue is a wide entrance to the station, sufficient in width for three cars to enter abreast. There are two islands of gasoline pumps, on situated alongside the * * * office * * *, the other island of pumps is situated nearer Huntington Avenue.' At the time of the accident the plaintiff was standing near the Huntington Avenue pumps at the rear of a customer's car, which he was 'servicing.'

On the day of the accident, just before noon, Carl Tinglof (Tinglof) left his place of business on Floral Street, Brookline, in his automobile. He was accompanied by a business associate whom he was driving to Kent Street, Brookline. Tinglof, aged sixty-four, was a 'strong, healthy active man with no history of any physical diseases * * * [or] fits, spells or seizures.' He 'turned his car into Pond Street and from Pond Street into Washington Street and proceeded along Washington Street at a speed of approximately 35 miles per hour. At a point at the end of the iron fence and just before going under the overpass * * * [Tinglof's] head fell back against the cushion of the front seat, [he] dropped his hands from the wheel, gasped two or three times and lay still.' This happened about 300 feet from the point of the accident. Tinglof's passenger 'had never operated a car and was unable to do anything to stop it or alter its course.' The car continued on and came into the yard of the filling station, striking and injuring the plaintiff. Between the time when Tinglof's head fell back and the accident, there was 'no further evidence of movement or change of position' by him; nor, after the two or three gasps, were there any sounds. Upon arrival at a hospital, to which Tinglof was taken after the accident, he was pronounced dead. After the accident 'there was no evidence of movement or sound' on the part of Tinglof. The cause of death was 'coronary occlusion.'

After finding the foregoing facts, the auditor concluded: 'I find that * * * [Tinglof] was operating his motor vehicle in a prudent manner * * * when he was suddenly scized with a coronary attack which rendered him helpless and unable to exercise any ability to operate his motor vehicle. From the moment of that seizure I find that he was either dead from the effects of the coronary occlusion or so close to death as to have been rendered completely incapable of operating his vehicle through no fault of his own. * * * I find that the accident, serious as it was, was caused in its entirety by a sudden coronary occlusion of which * * * [Tinglof] had no warning and that no conduct of * * * [his] prior to his seizure contributed in any way to the accident. * * * Therefore, I find for the defendant.'

The case was heard in the Superior Court on the auditor's report and other evidence. The jury found for the plaintiff, and the verdict was recorded under leave reserved. The defendant excepted to the denial of his motion for a directed verdict, to the denial of his motion for entry of a verdict in his favor under leave reserved, and to certain rulings on evidence during the trial. To determine the correctness of these rulings, the judge reported the case to this court.

There can be no doubt that, if the only evidence was the auditor's report, the defendant's motion for a directed verdict should have been granted. 'By the great weight of authority a sudden and unforeseeable physical seizure rendering an operator unable to control his motor vehicle cannot be termed negligence. * * * Such [a sizure] does not fall within the definition [of negligence] by Chief Justice Rugg in Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505, 506, 4 A.L.R. 1185.' Carroll v. Bouley, 338 Mass. 625, 627, 156 N.E.2d 687, 689. But the case was not tried solely on the auditor's report; there was additional evidence. It is the plaintiff's contention that this evidence was...