Robson v. Lyford

• Decision Date: 23 October 1917
• Citation: 228 Mass. 318,117 N.E. 621
• Parties: ROBSON v. LYFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 318

117 N.E. 621

ROBSON

v.LYFORD.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 23, 1917.

Exceptions from Superior Court, Hampden County.

Action by Stuart M. Robson, administrator, against Edwin F. Lyford, executor. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

Edmund P. Kendrick, McClintock, McClintock & Jennings, and David B. Hoar, all of Springfield, for plaintiff.

Chas. H. Beckwith, Chas. C. Spellman and Rufus H. Tilton, all of Springfield, for defendant.

PIERCE, J.

This is an action of contract brought under R. L. c. 141, § 19, by the plaintiff as administrator de bonis non cum testamento annexo of the estate of Elizabeth T. Porter against the defendant as executor of the will of Sherman D. Porter to recover a pecuniary legacy of $50,000 and a specific legacy of personal property of the agreed value of $2,238.75.

The sole question of fact in the case is, Did Mrs. Porter survive Mr. Porter? The trial judge submitted this question of fact to the jury against the defendant's request for a ruling that a verdict should be ordered for the defendant.

The case is brought before this court on the defendant's exception to the refusal to rule that a verdict should be ordered for the defendant, and upon exceptions taken to the admission of certain testimony of Fred W. Bennett and of that of Dr. George W. Stebbins. All other exceptions taken at the trial were waived at the hearing before the full court.

The material facts upon the testimony which could have been found by the jury are as follows:

Sherman D. Porter and Elizabeth T. Porter, his wife, lost their lives on August 26, 1913, in a common disaster consisting of a collision between a Knox limousine automobile in which they were riding and a train on the Boston & Maine Railroad at Bryant's Crossing in South Deerfield, Massachusetts. The train was an express passenger train going south towards Springfield on the west or south bound track, there being two tracks at the point of the accident. The automobile was coming south on the highway which runs practically parallel to the Boston & Maine Railroad tracks from South Deerfield Center to a point a little north of Bryant's Crossing where it turns and crosses the railroad tracks at an angle of about 25 degrees.

Mr. and Mrs. Porter had left Greenfield for Springfield sometime between 2 and 2:30 p. m. They both sat on the rear seat of the limousine in the tonneau, Mr. Porter in the right-hand corner and Mrs. Porter in the left, with quite a space between them. At the South Deerfield Post Office, which is from one-quarter to one-third of a mile north of the point of the collision, Mr. Porter's chauffeur, Bennett, noticed Mr. Porter sitting back in the right-hand corner of the seat, slouched down somewhat, his head turned slightly to the left and resting against the rear right-hand corner. About seventy paces north of the point of the collision the Porter limousine passed one Melendy, who was going south on the highway in a carriage. Melendy testified that after the Porter automobile passed him he saw Mrs. Porter lean forward as if to touch the chauffeur and immediately resume her former position in the left-hand corner of the seat. The Porter automobile was going in the same direction as the Melendy carriage and passed the latter on Melendy's right, the wrong side of the road. Mrs. Porter was sitting in the corner nearest Melendy, that is, the left-hand corner of the automobile, and was certainly back in her seat at the moment of the collision. Melendy saw the collision and testified that the train struck the automobile on the rear right wheel or immediately behind it.

The collision was also seen by one Mann, who testified that the engine struck the automobile about the rear of the right-hand side, the impact being between the corner and the rear wheel on the right-hand side, that is between the extreme corner and the wheel, directly back of the rear right wheel.

Melendy and Mann were the only eyewitnesses of the collision who undertook to testify as to the point of the impact.

The speed of the train at the moment of the collision was approximately 50 miles per hour and that of the automobile from 12 to 15 miles per hour.

Mr. and Mrs. Porter were carried down the track approximately 250 to 275 feet before being deposited on the ground on the westerly side of the south bound track. Various persons went down the track to where Mr. and Mrs. Porter were, the earliest arriving at the spot not less than a minute after the collision. No sign of life was then observed in either Mr. or Mrs. Porter.

Bennett, the chaffeur, who at the moment of the collision was sitting in the driver's seat on the left-hand side of the automobile, directly in front of Mrs. Porter, was found about 20 to 30 feet south of Mr. and Mrs. Porter only slightly injured and has since recovered. Various parts of the automobile were deposited along the ground on the westerly side of the south bound track, a small part of it being south, but most of it north of the bodies. None of the parts of the automobile were found east of the south bound track, except a spare tire which, before the collision, rested in a tire carrier fastened to the rear of the automobile. Mrs. Porter's hat was found on the easterly side of the south bound track at a point about opposite, or slightly south of the point where the bodies of Mr. and Mrs. Porter lay, and when found had a switch of artificial hair attached to it and both the hair and the hat were clean and in good condition. Near her body were also found a lady's handbag, which was open, and a purse, lady's watch and side comb and a few coins.

Mr. Porter's body lay about 10 feet west of the westerly or south bound track, and not quite at right angles to it. Mrs. Porter's body was close to Mr. Porter's, her feet being about 4 feet to the left of Mr. Porter's feet and her head towards the highway and about 10 feet from his head. Neither body had the appearance of having been rolled upon the ground.

The back of Mr. Porter's head was crushed in from a point near the top of the head to the base of the skull, and the skull was a pulpy mass, the bone being broken into small pieces and the brain oozing from it. The medulla oblongata was badly crushed and the floor of the skull was all broken. The right collar bone was broken, both legs were broken above the ankle, the bone of the left leg protruding through the flesh, the left arm was broken, the ribs were crushed in, those on the right side more than those on the left, and the sternum crushed in and flattened. Mr. Porter's body was much more limp than that of Mrs. Porter.

Mrs. Porter's skull was cut off almost horizontally at a point about level with or just over the eyes, the cut extending around on both sides above the top of the ears and on the same level continued clear around the skull. The cut was described as being about as clean a cut as would be made at an autopsy. The top of the skull, although cut off, was not completely severed from the head but remained attached to it by a hinge of scalp in the middle of the back of the head....