Melnik v. Perwak
| Decision Date | 28 October 1936 |
| Citation | 4 N.E.2d 329,295 Mass. 512 |
| Parties | MELNIK v. PERWAK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Franklin County; Collins, Judge.
Action of tort brought to the Superior Court by Henry Melnik against Joseph Perwak. To review the action of the trial judge in ordering a verdict for the defendant on each count of the declaration, the plaintiff brings exceptions.
Exceptions overruled.
W. A. Davenport, of Greenfield, for plaintiff.
J. T Connolly and W. R. Donovan, both of Boston, for defendant.
This is an action of tort brought by an administrator, in two counts, count 1 being under the death statute to recover for the death of his intestate and count 2 being to recover for alleged conscious suffering of said intestate.
There was evidence from which it might have been found that the intestate was struck by an automobile negligently operated by the defendant at about 11 P. M. on August 28, 1932; that about ten or fifteen minutes later the intestate was heard by a person ten or twelve feet away to emit a ‘ pretty loud noise’ which was like a ‘ groan, moan or snore’ ; that at that time his heart was still beating that the intestate was lying with his head toward the road at a little angle toward the south, somewhat doubled up, his head eight or nine feet from the macadam; that he was bleeding from his head; that about eighteen inches from his feet there was a pool of dried blood which was about six and one-half feet from his head. The road was an eighteen-foot macadam road with a three-foot shoulder and ran about north and south. The medical examiner testified that in his opinion, based on what he saw when he arrived at the scene of the accident at about midnight, there was no conscious suffering; that his reason for such opinion was that he could not understand how a man with so extensive an injury to his brain could have had any consciousness whatever following the injury; and that in his opinion it was possible for a man with such an injury to have emitted one or more such sounds over a period of fifteen minutes.
On the evidence above recited describing the position of the intestate in relation to the pool of dried blood at his feet, the plaintiff contends that the jury would be warranted in inferring that the intestate after he was struck had turned around and attempted to climb up the shoulder of the macadam road; that he had gone a distance of his length plus eighteen inches toward the road from where he first struck the ground; and that the fact, if found, that he headed toward the road indicated consciousness. This suggestion of consciousness of the intestate after he was struck by the automobile is manifestly purely speculative. It does not meet the burden of proof of conscious suffering which is upon the plaintiff and without which proof there can be no recovery by the plaintiff. Allicia v. Boston, Revere Beach & Lynn Railroad Co. (Mass.) 2 N.E.(2d) 457, and cases cited.
It is agreed that the administrator was appointed on April 2, 1935 and that this action was brought May 24, 1935. Respecting count 1 for death it is to be noted that an action for wrongfully causing the death of another is not a common law action, but is purely a statutory right. It is...
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