Shapiro v. Lyon

Decision Date27 November 1925
Citation254 Mass. 110,149 N.E. 543
PartiesSHAPIRO v. LYON et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Worcester County; W. H. Whiting, Judge.

Action of tort by Emma Shapiro, administratrix of the estate of Manahem M. Shapiro, deceased, against Abraham Lyon and others, doing business as Lyon Bros. Verdict for plaintiff, and defendants bring exceptions. Exceptions overruled.

C. C. Milton, of Worcester (J. Talamo, of Worcester, of counsel), for plaintiff.

F. P. Ryan, of Worcester, for defendants.

PIERCE, J.

This is an action of tort brought by an administratrix, under G. L. c. 229, §§ 1, 5, to recover for the benefit of the widow and next of kin of her intestate damages which are alleged to have been caused by the negligence of Meyer A. Lyon while engaged in the business of all the defendants. The answer is a general denial and the affirmative defense of contributory negligence. At the trial to a jury there was a verdict for the plaintiff.

The pertinent facts, taken largely from the testimony of the defendant Meyer A. Lyon, would have warranted the jury finding that on July 29, 1921, Meyer A. Lyon, a carpenter in the firm of Lyon Bros., with a place of business in Worcester, Mass., was operating a Ford coupé in Norwich, Conn., soliciting orders for the retail trade of his firm; that he left Norwich for Worcester at about 5 p. m., driving the automobile and taking as his guests a Mr. Silverman and the intestate, Shapiro; that Norwich is about 60 miles from Worcester; that, when they left, the weather was pleasant, but at Webster it became dark and was raining a mist; that between Webster and Worcester it rained hard and when they arrived on Southbridge street near the place of the accident, between 8:30 and 8:45 p. m., daylight saving time, it was raining very hard and the clouds had become ‘suddenly dark’ and black; that the car was driven along Southbridge street at the rate of 25 to 35 miles an hour ‘inside a thickly settled or business district’; that the Ford coupé came in collision with the rear of one of two five-ton Mack trucks which were standing, one in front of the other, on the right-hand side of the street, without rear red lights; that the Ford car was damaged almost beyond repair and the intestate instantly killed.

Lyon testified, in substance, that the front registration plate of the Ford car had been lost on July 28, 1921, and that he had, or had caused to be put in its place, a ‘substitute paper plate’; and that there had been no application to the registrar of motor vehicles for a new number plate, or for a permit to place a temporary number plate upon his vehicle, as is provided by G. L. c. 90, § 6, shall be done in case a plate is lost. He further testified, in substance, that the registration number of the Ford coupé car was 37708; that when demanded he showed the police the registration certificate, No. 37710, of another of the firm's motor vehicles; that the registration certificate of the car which was operated on the night of the accident was lost or mislaid and that he was unable to find or produce it at the trial. There was evidence which warranted a finding that the intestate, near Worcester on the state road, asked Lyon to stop going so fast, because it was raining and raining hard at that time and place.

[1] Upon the foregoing facts the judge could not have ruled rightly, as requested, that the plaintiff was not entitled to recover. The evidence warranted a finding that the automobile was driven at an excessive rate of speed, considering the time, the place and the weather. Although the intestate was a guest, his administratrix, in an action for death under G. L. c. 229, was bound to prove only ordinary negligence of the defendants. Sughrue v. Booth, 231 Mass. 538, 121 N. E. 432; and not gross negligence of the defendants as would have been required had the action been by the intestate, or by the administratrix to recover for the conscious suffering of the intestate. Burke v. Cook, 246 Mass. 518, 141 N. E. 585;Shriear v. Feigelson, 248 Mass. 432, 143 N. E. 307. The evidence in the case was insufficient to support the defense of contributory negligence. Burns v. Oliver Whyte Co., Inc., 231 Mass. 519, 121 N. E. 401;Powers v. Loring, 231 Mass. 458, 121 N. E. 425. Apart from the Statute of 1914, c. 553, § 1, now G. L. c. 231, § 85, there was evidence that the intestate was in the exercise of due care.

The record discloses that the truck with which the Ford coupé collided was owned by, and at the time of the accident was under the immediate supervision of, one Richard J. Cronin; that on September 17, 1921, the date of the writ in this action, the administratrix brought an action against the said Cronin; that the form of the writ, the ad damnum and the declaration in each action is identical, save in the name of the defendant and the return day.

The record in the Cronin action shows his appearance, answer, and the filing, on November 6, 1924, of the agreement which reads as follows:

Emma Shapiro, Adm'x, v. Richard J. Cronin.

‘Neither Party.

‘In the above-entitled case it is hereby agreed that the following entry may be made: ‘Neither party; no further suit to be brought for the same cause of action.’'

The brief of the defendants states that the question raised by the bill of exceptions are:

(1) ‘Whether the evidence of a release given by the...

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18 cases
  • Montellier v. United States
    • United States
    • U.S. District Court — Eastern District of New York
    • February 5, 1962
    ...Mass.Ann.Laws 1955, ch. 229, was not derivative, e. g., Oliveria v. Oliveria, 305 Mass. 297, 301, 25 N.E.2d 766 (1940); Shapiro v. Lyon, 254 Mass. 110, 49 N.E. 543 (1925). It contained specific sections relating to "Damages for Death from a Defective Way," § 1; "Damages for Death by Neglige......
  • Porter v. Sorell
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • October 28, 1932
    ...E. 187, but the court, holding that the plaintiff was estopped, did not find it necessary to pass upon it. In the case of Shapiro v. Lyon, 254 Mass. 110, 149 N. E. 543, the defendants' offer to prove the entry of an agreement of ‘Neither Party’ in an action brought by the plaintiff administ......
  • Selby v. Kuhns
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 20, 1963
    ...amount of that claim. See O'Neil v. National Oil Co., 231 Mass. 20, 28-29, 120 N.E. 107 (covenant not to sue); Shapiro v. Lyon, 254 Mass. 110, 117, 149 N.E. 543; Daniels v. Celeste, 303 Mass. 148, 152, 21 N.E.2d 1, 128 A.L.R. 682; Karcher v. Burbank, 303 Mass. 303, 306, 21 N.E.2d 542; Brock......
  • Meinecke v. Intermountain Transp. Co.
    • United States
    • Montana Supreme Court
    • January 28, 1936
    ... ... this testimony admissible, it was necessary that some ... appropriate allegation be found in the answer. Shapiro v ... Lyon, 254 Mass. 110, 149 N.E. 543; Kalloch v ... Hoagland (C.C.A.) 239 F. 252; San Pedro Lumber Co ... v. Reynolds, 121 Cal. 74, 91, 53 ... ...
  • Request a trial to view additional results

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