Sheehan v. Goriansky

• Decision Date: 13 September 1944
• Citation: 56 N.E.2d 883,317 Mass. 10
• Parties: SHEEHAN v. GORIANSKY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 10

56 N.E.2d 883

SHEEHAN

v.GORIANSKY.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 13, 1944.

Exceptions from Superior Court, Middlesex County; O'Connell, Judge.

Action of tort by John F. Sheehan, Sr., as administrator of the estate of John F. Sheehan, Jr., deceased against Lev Goriansky to recover damages for intestate's death as the result of the collision of an automobile operated by defendant with a telegraph pole. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled.

Before FIELD, C. J., and QUA, RONAN, and WILKINS, JJ.

D. J. Lyne and W. A. Ryan, both of Boston, for plaintiff.

F. P. Garland and R. B. Snow, both of Boston, for defendant.

WILKINS, Justice.

This is an action of tort to recover for the death of the plaintiff's intestate, John F. Sheehan, Junior. The one count submitted to the jury alleged that on August 24, 1940, the deceased was a passenger in an automobile operated by the defendant on a public way in Sudbury, that the defendant ‘so wilfully, wantonly, and recklessly’ operated the automobile as to cause the same to collide with a telegraph pole, resulting in Sheehan's death on the same day. G.L.(Ter.Ed.) c. 229, § 5, as amended. The jury returned a verdict for the plaintiff, and the defendant's exceptions present the sole question whether there was error in the denial of the defendant's motion for a directed verdict, which was not based upon the pleadings. See Weiner v. D. A. Schulte, Inc., 275 Mass. 379, 385, 176 N.E. 114;Beit Bros., Inc., v. Irving Tanning Co., 315 Mass. 561, 563, 53 N.E.2d 702.

The jury could have found the following: On August 23, 1940, the defendant drove a 1936 coupe belonging to his wife from his home in Wellesley to Maynard, arriving just before 10 P.M. After diverting himself for about an hour and a half in visiting a Finnish bath on Florida Street and two cafes, he was ready to return to Wellesley. He then found that he could not start the motor. Inquiry satisfied him that no garage was open, so he began working on it himself. It was between 11:30 and midnight and the automobile was stopped in the street near a light. While he was thus engaged, an intoxicated man back of him was bothering him, talking to himself for a few minutes, and finally addressing to the defendant a request for a cup of coffee. Without turning around, straightening up, or ceasing work, the defendant reached into his pocket, gave the man two nickels, saying, ‘Go away, don't bother me.’ The latter stopped talking, but the defendant did not see him go away. Soon the defendant had the motor running, and after looking around and not seeing anyone got into the automobile. Observing that the engine was working all right, he drove at least a thousand feet, and beyond a cafe turned in off the street. Later he returned and seated himself in the automobile. He then saw through the glass of the door on his right, close to the window, a man, ‘worn out and drunk,’ who asked for a ‘lift.’ The voice was that of the man to whom he had given the ten cents. As soon as he saw the man, the defendant closed the window, and locked the door according to his testimony, which the jury could have disbelieved, accepting instead the testimony of a dealer that this model of automobile could be locked not from the inside but only with a key from the outside. In height this man was four or five inches above the line of the top of the glass, which was about at his eyebrows. As he stood leaning over, his head was so that the defendant could see over his eyebrows. His forehead was close to the window bent over right against it. The defendant could not see his legs, and did not know where his feet were. The man had hold of the handle and began jiggling it. The defendant started the automobile ‘with a big jerk.’ After it started, he heard the man swearing. He was nervous, and ‘went full speed towards home.’ As to the cause of his nervousness, the defendant testified, ‘He annoyed me. I thought he wanted to hold me up or something.’ The defendant took route numbered 117 toward Waltham. It was then about midnight. There was no traffic. Later when two or three miles out of Maynard moving at thirty-five or forty miles an hour he turned the automobile off the hard surface of the road so that at least part of it went onto a dirt shoulder one and one-half feet to three feet wide. He then increased speed, and, proceeding a distance of about two hundred feet on the shoulder, ran head on into a telegraph pole located in underbrush four to six feet from the hard surface of the road. The defendant's explanation that he was blinded by the headlights of another automobile approaching on the wrong side of the road the jury were not bound to accept. Baines v. Collins, 310 Mass. 523, 525, 526, 38 N.E.2d 626, 138 A.L.R. 1123. The point of impact was the right side of the bumper. The pole, which split and snapped off, was wedged between the right front fender and the bumper. There was no appreciable damage to the running board. The right front headlight was shattered, and the left side of the windshield in front of the driver's seat was cracked. The defendant went to a house nearby to ask someone to telephone to a garage, and in the course of the conversation with a woman said, ‘I had a bad accident down the road.’ ‘There is a man hurt very badly.’ The defendant returned to the scene of the accident, and was later taken to a hospital by some young men in an automobile. He told these young men and the police that he had been alone. He also told a State police officer that he thought at the time of the accident someone was trying to kill him, and he had an impending fear of death.

Between 10:30 and 11 A.M. August 24, 1940, the body of the deceased was round in thick shrubbery six to eight feet off the road with the head in close proximity to the trunk of a pine tree which stood sixteen feet beyond the telegraph pole toward Waltham. Six inches from the ground the bark was freshly knocked off the tree in an irregular scar four inches long and two and a half to three inches wide. There was blood on the ground near the body, and in the area near the tree were parts of the automobile and pieces of broken glass from the headlight. According to the medical examiner, death, which in his opinion had occurred between 10 P.M. and 4 A.M., was caused by a compound fracture of the skull due to being thrown violently against a fixed object. The scar in the trunk contained hairs from the deceased's head. Bark from the tree was found in the head and trouser legs. On the palms of the hands and on the fingers there was grease like that from an automobile. On the deceased's chest, near his necktie, lay a right hand suede glove with a wool lining, stained with blood. This glove belonged to the defendant's wife, and its mate was on the shelf in the back of the automobile, where the pair of gloves was customarily kept. The deceased's brain on chemical analysis showed an alcoholic content equivalent to ‘about three shots of whiskey.’ On the evening of August 23 about three minutes before midnight the deceased, who was twenty-one years of age, five feet ten inches in height, and weighed one hundred and seventy-five pounds, had left a Finnish bath on Powder Mill Road, Maynard. He had been in the company of three other young men.

The coupe had only one seat inside, and that was for the driver. Beside the driver there was a ‘baby seat,’ and a passenger would have to ride in the rumble seat. Following the accident the rumble seat was found closed. The spare tire mounted on the rear was ‘off to one side,’ and its metal cover was off. The right hand door was locked.

There was no evidence that the defendant was affected by liquor, and there was evidence that he was not. There is, therefore, no question of intoxication on his part. Adams v. Doucet, 316 Mass. 63, 55 N.E.2d 4.

The defendant rightly concedes that the circumstantial evidence was sufficient to warrant the jury in finding that the deceased was killed when the defendant's automobile collided with the pole. It likewise could have been found that the deceased had been somewhere on the automobile Although fresh from the baths there was automobile grease on his hands. Had the deceased been a pedestrian who was struck, the jury might have thought that there would have been broken bones or other bodily injuries; they were lacking. No suggestion has been made as to how the deceased, if not on the automobile, could have reached the fatal point at least two miles out of Maynard in a thinly populated community on the Sudbury road in the limited time elapsing between his leaving the baths and the moment of the collision, particularly as the defendant saw no other automobile before reaching the scene. If the deceased were on the automobile, he was there without invitation and in the circumstances was a trespasser to whom the defendant owed the duty to refrain from wantonly or recklessly exposing him to danger. Massell v. Boston Elevated R. Co., 191 Mass. 491, 493, 78 N.E. 108;Theriault v. Pierce, 307 Mass. 532, 534, 30 N.E.2d 682;Little v. Levison, 316 Mass. 159, 162-163, 55 N.E.2d 17. And the judge so charged the jury without objection. Button v. Crowley, 284 Mass. 308, 313, 187 N.E. 615;Sluskonis v. Boston & M. R. R., 299 Mass. 413, 415, 12...