Seymour v. Dunville

• Decision Date: 13 December 1928
• Citation: 164 N.E. 79,265 Mass. 78
• Parties: SEYMOUR v. DUNVILLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 78

164 N.E. 79

SEYMOUR

v.DUNVILLE.

Supreme Judicial Court of Massachusetts, Worcester.

Dec. 13, 1928.

Exceptions from Superior Court, Worcester County; P. J. O'Connell, Judge.

Action by Edward P. Seymour, administrator of the estate of Leo J. Seymour, deceased, against Wilfred C. Dunville. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

1. Automobiles k245(15)-Whether truck driver knew of approach of automobile from rear before collision therewith held for jury.

Whether driver of truck knew of approach of automobile from rear before collision therewith as it passed truck, though he did not hear horn, held for jury, in action for death of automobile driver.

2. Automobiles k245(15)-Truck driver's carelessness in turning truck or not preventing it from turning into automobile passing it from rear held for jury.

Whether truck driver was careless either in turning truck into automobile passing it from rear or in not preventing it from so turning held for jury, in action for death of automobile driver.

3. Automobiles k245(60)-Whether automobile tire, stuffed with weeds, grass, etc., contributed to collision with truck, held for jury.

Whether right front automobile tire, filled with weeds, grass, and paper after blow-out, had any causal connection with collision with truck in passing it from rear, held for jury, in action for automobile driver's death.

4. Automobiles k245(60)-Whether presence of three persons on front seat of automobile, with one on driver's left, so interfered with driving as to be contributing cause of collision with truck, held for jury (G. L. c. 90, s 13).

Whether presence of three persons on front seat of automobile, with one of them on driver's left, so interfered with his driving as to be contributing cause of collision with truck in passing it from rear, within G. L. c. 90, s 13, held for jury, in action for death of such driver.

5. Automobiles k245(81)-Automobile driver's negligence in not allowing sufficient clearance while passing truck from rear held for jury.

Whether automobile driver, killed in collision with truck while attempting to pass it from rear, was negligent in not allowing sufficient clearance between automobile and truck, held for jury.

W. I. McLoughlin, of Worcester, for plaintiff.

J. C. McDonald, of Worcester, for defendant.

SANDERSON, J.

This is an action by the administrator of Leo J. Seymour for death and conscious suffering, resulting from a collision in the night between a truck, owned by the defendant and operated by his employee acting within the scope of his employment, and a runabout owned and operated by the deceased. The verdict was for the plaintiff. The only exception argued is to the refusal of the judge to allow the defendant's motion for a directed verdict.

At some time before the date of the accident, the seat of the runabout had been removed and a rear seat from a larger automobile had been bolted to the frame in its place, large enough, according to the testimony, to seat three adults of ordinary size. The runabout had no mudguards. Shortly before the accident the deceased was riding with two companions when a blow-out occurred in the right front tire; they had no spare tire and the inner tube was beyond repair. The tire was stuffed with weeds, grass and paper until it was solid and then put back on the wheel. The automobile of the deceased was not equipped with demountable rims but the tires were...