Ouillette v. Sheerin

• Decision Date: 07 July 1937
• Parties: OUILLETTE v. SHEERIN (two cases). JORDAN v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 536

9 N.E.2d 713

OUILLETTE

v.SHEERIN (two cases).

JORDAN

v.SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

July 7, 1937.

Exceptions from Superior Court, Middlesex County; Leary, Judge.

Actions of tort, tried together, by Eugene H. Ouillette, George E. Ouillette, a minor, by his next friend, and Clifford Jordan, respectively, against John L. Sheerin. Verdicts for plaintiffs in the sums of $225, $5,000, and $50, respectively, and defendant brings exceptions.

Exceptions in the cases of plaintiffs Ouillette overruled, exceptions in the case of plaintiff Jordan sustained, and entry of judgment for defendant in the latter case directed.M. G. Rogers, of Lowell, for plaintiffs.

G. B. Rowell and A. R. Berge, both of Boston, for defendant.

DONAHUE, Justice.

The plaintiff Jordan was driving his automobile, on the front seat of which the plaintiff George E. Ouillette was riding, along Middlesex street in Lowell, in the nighttime, when his automobile collided with the rear end of an unlighted automobile truck owned by the defendant, and standing in front of his home.

Jordan now seeks to recover for damages to his automobile, having waived a claim for personal injuries. George E. Ouillette was a minor, and an action was brought on his behalf by a next friend to recover damages for personal injuries. His father brought an action to recover for consequential damages resulting from the son's injuries. The cases were tried together in the Superior Court and there was a verdict for the plaintiff in each case. Exceptions of the defendant to the refusal of the judge to direct verdicts for him, to the exclusion and admission of evidence, to the refusal to give certain requested rulings and to portions of the charge are here presented.

The bill of exceptions states that ‘There was sufficient evidence from which the jury might find that the truck owned by the defendant * * * was parked on Middlesex Street * * * without a tail light lighted as required by the statute’ (G.L. [Ter.Ed.] c. 90, § 7; St.1933, c. 51). The question of negligence of the defendant was therefore properly submitted to the jury. Jacobs v. Moniz, 288 Mass. 102, 104, 192 N.E. 515, and cases cited. The defendant contends that verdicts should have been directed in his favor on the ground that negligence of the plaintiffs Jordan and George E. Ouillette contributed to their damage and injury, the right of the other plaintiff to recover being dependent upon the right of his son George Ouillette to recover. Regan v. Superb Theatre, Inc., 220 Mass. 259, 261, 107 N.E. 984.

The plaintiff Jordan testified that prior to the collision he had been operating his automobile at the rate of twenty-five to thirty miles an hour. There were no vehicles coming from the opposite direction. He testified that ‘it was misting * * * it was not quite a rain.’ There was other testimony that it was then raining. The one windshield wiper with which the automobile was equipped was in front of the driver's seat where Jordan sat and was operating as his automobile came along Middlesex Street. There was nothing in the record indicating that it was not operating properly or that the rain or mist materially impaired his view through the portion of the windshield where the wiper operated. He and Ouillette were talking. He did not see the defendant's standing truck until his automobile was within five or six feet of it, as he testified on direct examination, or ten feet, as he said in cross-examination. Upon seeing the truck he immediately turned his automobile to the left and applied his brakes but was then unable to avoid the collision.

We think that from Jordan's own testimony it is a necessary conclusion that his lack of care contributed to causing the collision. His headlights were lighted. They had been inspected two days before the accident. He testified that by those lights he could see ahead ‘the distance which was required by law * * * one hundred and sixty feet and that as he was coming along that road on that night he could see a distance of one hundred and sixty feet ahead with the lights in the condition they were that night; that it was fair to say that he could see a pedestrian walking across the street or an automobile a distance of one hundred and sixty feet ahead of him and that that was true all of the time he was travelling on Middlesex Street that night.’ It is suggested by plaintiffs' counsel that the driver was mistaken as to the distance he could see ahead by the light of his headlights. A witness called by the plaintiffs testified on cross-examination that the headlights were not white ‘like a new car’ and did not ‘throw the light well,’ but he did not testify how far they did ‘throw the light.’ We find nothing in the record which diminishes the effect of Jordan's estimate as to the distance he in fact could see ahead on the night in question.

He came into Middlesex Street at a point which was five hundred and seventy feet distant from the place where the defendant's truck was and the street was straight between those two points. He was operating his automobile within three feet of the curb at his right, and the defendant's truck was standing within two or three feet of the curb. On his testimony, when he was one hundred and sixty feet from the truck his headlights must have made the truck in his path plainly visible. He was looking straight ahead. Yet without changing course or speed he continued and did not see the truck until he was within five or ten feet of it. The conclusion is required that he looked carelessly. Stone v. Mullen, 257 Mass. 344, 346, 153 N.E. 565.

The plaintiff George E. Ouillette was entitled to recover for negligence of the defendant even though negligence of Jordan also contributed to cause the collision, if Ouillette was not guilty of contributory negligence. Tevyaw v. Hemingway Brothers Interstate Trucking Co., 284 Mass. 441, 442, 188 N.E. 232. On the evidence it could not properly have been ruled as matter of law that Ouillette negligently abandoned all care for his own safety or that his conduct with respect to looking out for his own safety was negligent.

There was evidence warranting the finding that because of rain on the portion of the windshield which he faced, he was able to see very little that was on the road directly in front of him. He was however looking ahead as the automobile approached the place of the accident. He did not see the unlighted truck of the defendant before the collision. On cross-examination he testified that he and Jordan were laughing and talking as the automobile proceeded along Middlesex Street, that he left the speed and the operation of the automobile to Jordan and that he made no objection to the manner in which the automobile was operated.

There was not much that one in his position could do for his own safety. See Bullard v. Boston Elevated Railway Co., 226 Mass. 262, 264, 115 N.E. 294. The jury were warranted in finding that what little he could do in that respect he did, in looking ahead as the automobile went along the street. There was nothing in the circumstances appearing precedent to the collision which as matter of law made negligent his failure to complain of the manner in which the automobile was operated. Reliance on Jordan so far as the operation of the automobile was concerned would not as matter of law constitute a negligent surrender of all care if, as it could have been found, he continued to exercise such care as he could for his own safety. Griffin v. Hustis, 234 Mass. 95, 99, 125 N.E. 387. It could not have been ruled as matter of law that negligence on his part contributed in causing the collision, and a verdict for the defendant in his case could not rightly have been directed.

The defendant excepted to the testimony of a police officer to the effect that one half or three quarters of an hour after the plaintiffs' accident, he arrived at the scene in a police car. approaching from the same direction as Jordan's automobile had come, that it was raining; that in front of the place where he was sitting on the front seat there was no windshield wiper; that he was looking ahead; and that the first he saw of the defendant's truck was when the police car was slowing down about twenty-five feet from the truck. The conditions under which the witness and the plaintiff Ouillette looked were alike in the respects that each was sitting behind a portion of a windshield where there was no wiper, at a time when it was raining, and that each approached the defendant's truck from the same direction. It did not appear that the headlights on the two automobiles were of the same strength or that the eyesight of the two persons was identical. But a preliminary determination by the judge in the exercise of his discretion, that the conditions on the two occasions less than an hour apart were sufficiently similar to justify the putting of the police officer's testimony before the jury, cannot be said...