Scatena v. Pittsburgh and New England Trucking

• Decision Date: 05 December 1974
• Citation: 319 N.E.2d 730,2 Mass.App.Ct. 683
• Parties: Anthony SCATENA v. PITTSBURGH & NEW ENGLAND TRUCKING (and a companion case). 1
• Court: Appeals Court of Massachusetts

Page 730

319 N.E.2d 730

2 Mass.App.Ct. 683

Anthony SCATENA v. PITTSBURGH & NEW ENGLAND TRUCKING (and a companion case).¹

Appeals Court of Massachusetts, Suffolk.

Argued Oct. 18, 1974.

Decided Dec. 5, 1974.

Frank P. Hurley, Boston (Ralph H. Willard, Jr., Boston, with him), for defendant.

Philander S. Ratzkoff, Boston (James F. Meehan, Boston, with him), for plaintiff.

Before HALE, C.J., and ROSE, GRANT and ARMSTRONG, JJ.

ROSE, Justice.

This is the consolidation of two cross actions in tort, growing out of a collision between two trucks. At the conclusion of all the evidence Pittsburgh & New England Trucking (P. & N.E.), the defendant in one case and the plaintiff in the other, filed motions for directed verdicts. The motions were denied, and exceptions were taken. The jury returned verdicts favorable to Scatena in both cases. The issues presented to us are, first, was there sufficient evidence of negligence on the part of P. & N.E. to allow the case against it to go to the jury and, second, was negligence on the part of Scatena shown as a matter of law. ²

The evidence was in conflict, but upon a motion for a directed verdict 'we need only consider evidence favorable to the . . . (opposing party) from whatever source it came, including evidence more favorable to the . . . (opposing party) than that given by . . . (that party) (himself). If upon any reasonable view of the evidence there is found any combination of circumstances from which a rational inference may be drawn in favor of the . . . (opposing party), then there was no error in the denial of the motion . . ..' Howes v. Kelman, 326 Mass. 696, 697, 96 N.E.2d 394, 395 (1951); Prout v. Mystic Motor Transp. Co. Inc., 317 Mass. 349, 350--351, 58 N.E.2d 121 (1944).

Without directly considering the duty of care imposed by State statutes and Federal regulations requiring the placement of flares, ³ the violation of which is only evidence of negligence and not negligence per se, Harsha v. Bowles, 314 Mass. 738, 741, 51 N.E.2d 454 (1943); Wallace v. Patey, 335 Mass. 220, 139 N.E.2d 407 (1957), we still find that a sufficient case of negligence was made out.

The evidence when viewed most favorably to Scatena was as follows. P. & N.E.'s tractor trailer was disabled during the nighttime and came to rest across both lanes of a two lane highway. It was about 250 feet from the crest of a hill, and those 250 feetof highway were covered by a glaze of ice. The driver of the P. & N.E. truck testified that a vehicle coming over the hill "wouldn't have a chance in the world" without a warning light. The testimony was in conflict as to which, if any, warning signals were in operation at the time Scatena, proceeding uphill from the opposite direction in another tractor trailer, approached the crest of the hill. Scatena himself testified that he saw flares placed along the side of the road adjacent to trucks stopped at the crest of the hill, but that the placement of these flares indicated to him that the trucks parked at the crest of the hill might be having trouble. Even more favorable to Scatena was testimony that no flares could be seen in the area from the top of the hill down to the disabled vehicle. Compare Nickerson v. Boston & Maine R.R., 342 Mass. 306, 313, 173 N.E.2d 248 (1961); Byrne v. Dunn, 296 Mass. 184, 187, 5 N.E.2d 10 (1936). It was properly a question for the jury whether any signals were in operation, and, if they were, whether they provided adequate warning of the certain danger that loomed over the hill. See Smith v. Wattenburg, 133 Cal.App.2d 193, 198--199, 283 P.2d 751 (1955). There is a duty on the part of the driver of a disabled vehicle stopped in a traffic lane to do all that is required either by statute or by prudence to reduce the danger. See Cronenberg v. United States, 123 F.Supp. 693, 699 (E.D.N.C.1954); Wills v. Anchor Cartage & Storage Co., 26 Ohio App. 66, 159 N.E. 124 (1926); Pender v. Trucking Co., 206 N.C. 266, 268, 173 S.E. 336 (1934); Montgomery v. National Convoy & Trucking Co., 186 S.C. 167, 174, 176--177, 195 S.E. 247 (1937); Holder Motor Co. v. Davidson, 243 S.W.2d 926, 929 (Ky.A...