Monaghan v. Keith Oil Corp.

• Citation: 281 Mass. 129,183 N.E. 252
• Parties: MONAGHAN v. KEITH OIL CORPORATION, and five other cases.
• Decision Date: 30 November 1932
• Court: United States State Supreme Judicial Court of Massachusetts

281 Mass. 129

183 N.E. 252

MONAGHAN

v.KEITH OIL CORPORATION, and five other cases.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 30, 1932.

Exceptions from Superior Court, Bristol County; Walter L. Collins, Judge.

Separate actions by Theresa Monaghan by Martha Reback, by Orpha F. De Vaux, by Reginald G. De Vaux p. p. a., by John Rogan, and by Mary E. Walsh against the Keith Oil Corporation. Verdicts for defendant, and plaintiffs bring exceptions.

Exceptions overruled.

H. Wm. Radovsky, I. H. Simon, W. A. Torphy, and Everett Dashoff, all of Fall River, for plaintiffs.

Timothy F. O'Brien, of New Bedford, for defendant.

CROSBY, J.

These are actions of tort arising out of a collision of an automobile and a truck owned by the defendant and operated by one Keith, its employee. The accident occurred about half past one in the morning of April 7, 1926, on Riverside avenue, in Somerset, in this commonwealth, not far from the entrance to the Brightman street bridge. Riverside avenue runs north and south; the bridge runs east and west, beginning at Riverside avenue on the Somerset side and going east to Fall river. The plaintiff Theresa Monaghan was the owner and driver of the authomobile. The other plaintiffs, except Orpha F. De Vaux, were passengers in the automobile invited by the owner to attend an entertainment in Boston the evening before. They were returning to their homes in Fall River when the accident occurred. There was testimony offered by the plaintiffs to the effect that while they were travelling south on the right side of Riverside avenue and before they had reached a point where the avenue turns into the Brightman street bridge, the truck ‘suddenly loomed up before them,’ three or four feet away, and hit the left forward end of the automobile causing its left forward wheel to collapse and injuring them severely. They all testified that they were looking ahead as they approached the bridge until the time of the accident; that they saw no light on the front of the truck at the time of the collision and heard no warning of the approach of the truck until just before the collision; that three of the plaintiffs ‘were knocked unconscious' and the automobile was wrecked.

There was evidence that Riverside avenue at the place of the accident was fifty-four feet wide and the Brightman Street bridge was forty-four feet wide. The only witnesses who saw the accident were the persons in the automobile and the driver of the truck. The latter testified that the truck was twenty-three or twenty-four feet long and at the time of the accident carried two thousand and ninety-six gallons of oil and weighed fourteen tons; that it was equipped with two headlights, one green light on the extreme left side, and a tail light, and that all the lamps were lighted and had been tested the night of the accident; that when he reached the Brightman Street bridge he was travelling on the right-hand side of the road at a speed of about twelve miles an hour; that he saw the automobile when it was about three hundred yards away from the point of collision and at that time it seemed to be travelling on the right-hand side of the road; that he did not see it again until it was about thirty feet away ‘going directly towards him,’ and travelling faster than the truck, although he could not state its rate of speed; that it was directly in front of the truck and coming toward it travelling on its left side of the road; that when the truck was part way around the curve entering upon Riverside avenue, the automobile was coming toward the truck. This witness further testified that while going over the bridge he was travelling about a foot from the curbing; that when he saw the automobile ‘he threw his wheels to the right, put his brake on and threw out his clutch and then the two cars came together; that his left front, the spring on the left-front side and the left-front wheel and the fender were struck; that his hands were thrown and twisted off the wheel and his feet were thrown off the clutch and brake and he fell forward, his chest striking the steering wheel’; that the front of the truck ‘shot out at the left at a very sharp angle; that wehn he realized what had happened he pulled the emergency in, pushed out the clutch and threw the gear shift into neutral and stopped the truck; that there was a scrape mark on the concrete that started ten feet from the curb and went in a very sharp angle to the left and led to the left-front wheel; [that] the left-front wheel would not rotate because it was underneath the frame and the frame of the truck was directly on the wheels; that as the truck was making the curve he noticed that the * * * [automobile] had taken a diagonal turn cutting the corner for the purpose of going onto the bridge.’ Two bridge tenders testified that they did not see the accident, but after it occurred they saw tire marks of the truck indicating it was travelling on its right-hand side of the road as it was coming along the bridge and turning onto Riverside avenue, and then swerved sharply to the left ‘practically at right angles with the direction it was travelling just before.’ They further testified that they saw the truck pass them on the bridge shortly before the accident and it was then lighted. It is recited in the record that there was other evidence offered by the defendant as to the tire marks of the truck, which tended to show that it was travelling on its right-hand side of the road, and where the vehicles were after the accident. One of these bridge tenders testified that he swept up glass broken from the windshield of the automobile on the left of the center line of both streets in the direction in which the automobile was travelling. Some of the testimony was to the effect that the automobile was on its right side of the road, and other testimony was that it was on its left. In each action the jury returned a verdict for the defendant. The cases are before this court on exceptions to the admission and exclusion of evidence, to the refusal to give certain rulings requested, and to parts of the judge's charge. The exceptions so far as argued will be considered.

[2] Upon cross-examination of the operator of the truck, the plaintiffs introduced in evidence three records of the conviction of the witness for operating a motor vehicle at an unreasonable or excessive rate of speed; in each case a fine was imposed. These records were properly admitted. On redirect examination by the...