Shapiro v. Union Street Railway Co.
| Decision Date | 28 November 1923 |
| Citation | 247 Mass. 100 |
| Parties | JULIUS SHAPIRO v. UNION STREET RAILWAY COMPANY. BENJAMIN MECHABER v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 22, 1923.
Present: RUGG, C.
J., BRALEY, DE COURCY, PIERCE, & JENNEY, JJ.
Practice, Civil Actions tried together, Exceptions. Negligence, Street railway, Motor vehicle, Of guest.
Where four separate actions, respectively by the driver of and guests in an automobile against a street railway company for personal injuries resulting from a collision between a car of the defendant and the automobile, are tried together and after a verdict for the several plaintiffs the defendant alleges exceptions, every fact material to the common alleged right of the plaintiffs or to the defence of the defendant thereto raised by exceptions and prosecuted, should be contained in one bill of exceptions: it is improper for the defendant to prosecute two bills of exceptions, one relating to one case only and founded on the refusal of the judge to allow a motion that a verdict be ordered for the defendant, and the other relating to the rights of all the plaintiffs to retain their several verdicts.
Where, in the circumstances above described, the defendant files two bills of exceptions, the facts which form the basis for determination of the exceptions in this court may be ascertained by resort to both bills.
The evidence, at the trial of an action by a guest in an automobile against a street railway company for injuries received when the automobile was struck by a street car of the defendant tended to show that the automobile, in which the plaintiff was riding, began to cross from the right hand to the left hand side of a street on which the street car ran when the street car, as seen by the plaintiff, was two hundred and sixty-two feet in front of the automobile and was approaching "very fast;" that the automobile crossed the street, attempting to turn around and go in the opposite direction, but failed to make the turn owing to the nearness of the curb; that it stopped with its right hand forward wheel against the curb and its left hand rear wheel on the track of the defendant, and that the street car, "coming very fast," collided with the automobile. Held, that the questions of the negligence of the defendant and of the due care of the plaintiff were for the jury.
In the automobile in which the plaintiff in the action above described was a guest, were two other guests and the driver, and each of the four brought an action against the defendant for personal injuries. In each action the defendant asked for an instruction that, "If the four plaintiffs were riding in a Ford Roadster and their presence limited the driver of the automobile in his exercise of control over the automobile and his lack of control or limited operation in any way contributed to the accident, then the plaintiffs cannot recover and your verdict should be for the defendant."
The instruction was not given in form or in substance. Held, that in form or substance the instruction should have been given.
FOUR ACTIONS OF TORT, respectively by the driver of an automobile (Cohen) and by each of his three guests (Shapiro, Mechaber and Stern), for personal injuries received when the automobile was run into by a street car of the defendant on Purchase Street in New Bedford. Cohen also claimed property damage. The writs of the plaintiffs other than the plaintiff Mechaber were dated October 5, 1920. The Mechaber writ was dated October 11, 1920.
In the Superior Court, the actions were tried together before N. P. Brown, J. Material evidence and exceptions saved by the defendant are described in the opinion. Verdicts were returned for the plaintiffs as follows: for Shapiro in the sum of $375, for Mechaber in the sum of $700, for Stern in the sum of $250, and for Cohen in the sum of $35. The defendant alleged exceptions as described in the opinion.
T. F. O'Brien, for the defendant. H. A. Lider, for the plaintiffs Shapiro, Stern and Cohen.
S. Barnet, for the plaintiff Mechaber.
These are four separate actions of tort tried together before a jury. The declaration in each of the cases is in two counts in the Mechaber case one for "willful wanton and reckless conduct" and the other for ordinary negligence in the Shapiro, Stern and Cohen cases one for "gross, reckless and wanton negligence" and the other...
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