Pelland v. D'Allesandro

• Decision Date: 04 June 1947
• Citation: 321 Mass. 387,73 N.E.2d 590
• Parties: PHILLIP J. PELLAND v. ENRICO D. D'ALLESANDRO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

321 Mass. 387

73 N.E.2d 590

PHILLIP J. PELLAND v. ENRICO D. D'ALLESANDRO.

Supreme Judicial Court of Massachusetts, Middlesex.

June 4, 1947

April 10, 1947.

Present: FIELD, C.

J., QUA, DOLAN WILKINS, & SPALDING, JJ.

Negligence, Motor vehicle, Res ipsa loquitur, Contributory.

Evidence merely that the owner of an automobile parked it in a lot having a rough dirt surface and a "distinct grade down from the . . lot toward" an adjacent highway not over twenty feet distant, and that within a few minutes after it was parked it rolled down to the highway and there struck a passing automobile, warranted a finding of negligence on the part of the owner.

Evidence that the owner of a lighted automobile was driving it on a clear night on a down grade and on his right side of the highway at the rate of thirty to forty miles per hour when he noticed a black object coming from a roadside eating place set back in a grove on his left, and that the black object, another automobile, proceeding on its own momentum, struck the middle of his autombile and damaged it, did not require a ruling that he was guilty of contributory negligence.

TORT. Writ in the District Court of Lowell dated February 19, 1943. The case was heard by Walsh, J.

B. H. Seron, for the defendant. J. A. McNiff, for the plaintiff.

DOLAN, J. This is an action of tort to recover compensation for damage to the plaintiff's automobile alleged to have been caused by the defendant's negligence. The trial judge found for the plaintiff, and the case now comes before us on the defendant's appeal from the order of the Appellate Division dismissing the report.

There was evidence as follows: On the night of July 6, 1941, the plaintiff was operating an automobile owned by him on the Boston Road at a point between Bedford and Chelmsford. He was proceeding on the right hand side of the road at a speed of about thirty to thirty-five miles an hour. It was a clear night, and the lights of the plaintiff's automobile were on. The plaintiff approached, on a "down grade" at a rate of speed of thirty to forty miles an hour, a roadside eating place called the Chateau, which was on his left hand side of the road, when he noticed a black object coming from the location of the Chateau. He applied the brakes of his vehicle and endeavored to stop, but the object, a sedan, rolled down into the road and struck the middle of the plaintiff's automobile, throwing it against a fence. As a result both sides of the plaintiff's automobile were demolished. Immediately thereafter the defendant and another man came out from the Chateau, and the defendant stated that the vehicle which had struck that of the plaintiff "belonged to him," that he had just parked it a few minutes before, and that he could not understand how it had rolled down. The defendant had not locked his vehicle when he parked it, but he had taken the keys with him when he went into the Chateau. The road approaching the place of the accident was straight for two or three hundred yards. The Chateau was set back in a grove. The parking space from which the defendant's automobile came was not over twenty feet from the highway and had a rough dirt surface, and there was a "distinct grade down from the parking lot toward the highway."

At the close of the evidence the defendant filed seven requests for rulings, four of which were refused by the judge, who made findings of fact substantially in accord with the evidence set forth...