Schusterman v. Rosen

• Decision Date: 02 November 1932
• Citation: Schusterman v. Rosen, 280 Mass. 582, 183 N.E. 414 (Mass. 1932)
• Parties: SCHUSTERMAN v. ROSEN (five cases).
• Court: Supreme Judicial Court of Massachusetts

280 Mass. 582

183 N.E. 414

SCHUSTERMAN

v.ROSEN (five cases).

Supreme Judicial Court of Massachusetts, Berkshire.

Nov. 2, 1932.

Exceptions from Superior Court, Berkshire County; W. A. Burns, Judge.

Separate actions by William Schusterman, by Betty Schusterman, by Samuel Schusterman, by Bertha Schusterman, and by Ethel Schusterman against Tillie Rosen.Verdicts for plaintiffs, and defendant brings exceptions.

Exceptions overruled.

J. M. Rosenthal, of Pittsfield, for plaintiffs.

C. H. Wright, of Pittsfield, for defendant.

CROSBY, J.

These are five actions of tort.The three female plaintiffs seek to recover for personal injuries sustained while riding in an automobile as guests of the defendant.The actions brought by the male plaintiffs are to recover for consequential damages arising out of injuries to their respective wives.The defendant is related to all the plaintiffs.The accident occurred in the town of Hancock, on the main highway between Albany and Pittsfield, when an automobile, owned by the defendant's husband and operated by the defendant, collided with a truck.On the morning of October 29, 1929, the defendant had taken her two young children and the three female plaintiffs from Pittsfield to Albany on a pleasure trip.On their return, shortly after six o'clock in the evening of the same day, and when it was dark, the accident occurred on the easterly side of Lebanon Mountain, so called.The plaintiffBetty Schusterman occupied the front seat of the car with the defendant.The other female plaintiffs were in the rear seat with the two children.

There was evidence tending to show the following facts: The highway where the collision occurred is eighteen feet wide, with shoulders about two feet in width; on the north side of the road there is a culvert, the deepest part being about three feet; on the south side there is a steep decline; the road slopes toward the east, the direction in which the automobile was travelling, and is on a down grade of four and one half per cent.The car driven by the defendant was following another car and just before the accident the defendant turned to the left to pass this car and collided with a truck which was bound westerly.The plaintiff who sat on the front seat testified that at the place where the defendant attempted to pass the car ahead of her there was a curve in the road, and that the view was obstructed.There was other evidence which tended to show that at that place the road was straight.The defendant testified that she could not see through the car ahead of her.There was evidence that when the defendant turned to the left and attempted to pass the car ahead of her she was travelling at a rate of over thirty-five miles an hour.The defendant'scar struck the truck with sufficient force to bend backward its heavy left axle two inches, and its front wheel on the left side was also pushed back.The truck weighed six and one half tons.There was evidence that the plaintiff who sat beside the defendant, and one of the two plaintiffs who were on the rear seat, shortly before the collision told the defendant not to go so fast.It did not appear that these warnings were heeded by the defendant.None of the female plaintiffs knew how to operate an automobile.There was evidence that the truck was about twenty feet long, eight feet wide, and between ten and twelve feet above the ground at the top.With the exception of the lettering the entire body was painted white.It was lighted at the time of the accident with two lights in front over the cab, one on each side, and two red lights in the rear at the top of the body.There was evidence that at the time of the collision the truck was travelling upon its extreme right side of the road and that it could not have been turned farther to its right without going into a ditch.

The State Inspector of Motor Vehicles testified, in substance, that he reached the scene of the accident about an hour after it occurred, and that practically one half of the automobile driven by the defendant was northerly of the center of the road, the left rear wheel being a little to the south of the center.

[1] If, as the jury could have found, the accident occurred on a curve and where there was not an unobstructed view of the road for at least one hundred yards, it was the duty of the defendant to keep her automobile to the right of the middle of the travelled part of the way when it was safe and practicable to do so.Failure in this respect would be a violation of law.G. L. (Ter. Ed.)c. 89, § 4.The evidence warranted a finding that the defendant became liable for all damages under G. L. (Ter. Ed.)c. 89, § 5.There was no traffic in the immediate vicinity at the time of the accident apart from the automobile that was followed by the one driven by the defendant, and which met and passed the truck in safety just before the collision occurred.

If the jury believed the...