Reardon v. Marston

• Decision Date: 30 December 1941
• Parties: REARDON et al. v. MARSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 461

38 N.E.2d 644

REARDON et al.

v.MARSTON et al.

Supreme Judicial Court of Massachusetts, Plymouth.

Dec. 30, 1941.

Exceptions from Superior Court, Plymouth County; Brogna, Judge.

Actions by William Leon Reardon, Jr., against Malcolm D. Marston and against the Dutchland Farms, Inc., and actions by William Leon Reardon, Sr., against Malcolm D. Marston and against the Dutchland Farms, Inc., for injuries sustained by William Leon Reardon, Jr., when struck by an automobile while he was riding a bicycle, and for consequential damages. Verdicts were for the plaintiffs in the action by Reardon, Jr., for $5,000 and in the action by Reardon, Sr., in the sum of $265. On defendants' exceptions to denial of motions for directed verdicts and to certain rulings on the evidence.

Exceptions overruled.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.

H. F. Hathaway, of Boston, for defendant.

E. J. Campbell and C. J. O'Byrne, both of Brockton, for plaintiff.

RONAN, Justice.

The first two actions are brought by a minor to recover for personal injuries sustained when he was struck by an automobile, operated by the individual defendant and owned by and registered in the name of the corporate defendant. The other two actions are brought by the father of the minor to recover for consequential damages. The plaintiffs had verdicts in all four cases. The cases are here on the exceptions of the defendants to the denial of motions for directed verdicts and to certain rulings upon evidence.

The jury could find that Marston was operating an automobile on a pleasant afternoon in September, 1937, in a northerly direction along the center of a slight curve in Field Parkway, a macadam public highway in Brockton, twenty feet in width, when the minor plaintiff, hereinafter called the plaintiff, riding a bicycle came upon the highway from a gravel path on the easterly side of the highway, proceeded a short distance in a general southerly direction, and then turned and travelled along an easterly course but a short distance when he was struck by the automobile. There was a large boulder in the southerly side of the gravel path along which the plaintiff was travelling and which would tend to obstruct the view of a person who, like Marston, was approaching from the south. There was also a second boulder south of the gravel path and ten feet east of the highway. The jury took a view. They could adopt the plaintiff's version of the accident and find that it occurred not opposite the junction of the gravel path and the highway, but to the south of the junction, and they could also accept the plaintiff's explanation, as hereinafter referred to, for his presence on his left hand side of the highway at the time of the accident. The cases presented the usual questions of fact concerning the liability of the defendants and all of them were properly submitted to the jury. Scranton v. Crosby, 298 Mass. 15, 9 N.E.2d 391;Butler v. Curran, 302 Mass. 1, 18 N.E.2d 340;Nash v. Heald, 306 Mass. 518, 29 N.E.2d 7.

The defendants excepted to two questions asked Marston. One was whetherhe had noticed signs in the parkway concerning the speed limit, to which he answered ‘Yes,’ and the second question was whether he had seen signs there reading ‘Speed Limit 20 miles an hour.’ He answered that he had seen signs but he did not recall whether they said fifteen, twenty or twenty-five miles per hour; that he thought there were signs which said ‘Drive Cautiously’ or something of that sort, but that he did not know ‘whether they pertain to speed in form of miles per hour.’ If we assume that all this evidence was subject to exception there was no error, because the answers were not affirmative evidence that any particular speed was designated by any of the signs. Tully v. Fitchburg Railroad, 134 Mass. 499;Livermore v. Fitchburg Railroad Co., 163 Mass. 132, 39 N.E. 789;Killam v. Wellesley & Boston Street Railway, 214 Mass. 283, 101 N.E. 374;Cross v. Albee, 250 Mass. 170, 145 N.E. 45. In the next place, the defendants could not have been harmed by showing that there were signs marked ‘Drive Cautiously.’ These were signs merely suggesting careful operation of the vehicle. No one contends that a penalty would follow the violation of their directions. Moreover, Marston, who was familiar with the location, testified, in answer to his own counsel, that he knew the signs had something to do with regulations; that he knew the parkway was regulated to some extent as to speed and that is what he had in mind when he chose to drive between twenty and twenty-five miles an hour. It is plain that the admission of the evidence did not constitute reversible error.

There was no error in the admission of the testimony of Paine that Marston was driving the automobile in the center of the way when it passed the witness at a point about eighty feet south of the junction of the gravel path and the highway, and which the jury could find was about sixty feet from the place of the accident. The relevancy of this testimony is shown by the evidence disclosing the events immediately leading up to the accident. The plaintiff, after he had testified that when he saw the automobile after he had come from the gravel path it was then fifty feet away and approaching him along the center of the way, properly was permitted to testify, subject to exception by the defendant, in substance that he did not think it was safe to cross to his right hand side of the way in front of the automobile. Jeddrey v. Boston & Northern Street Railway Co., 198 Mass. 232, 84 N.E. 316;Marturano v. Eastern Massachusetts Street Railway Co., 306 Mass. 231, 27 N.E.2d 989. The jury could find that the plaintiff saw the automobile a short distance from the point where it passed Paine, and its course from there on to...