Shockett v. Akeson

• Decision Date: 24 November 1941
• Citation: Shockett v. Akeson, 310 Mass. 289, 37 N.E.2d 1015 (Mass. 1941)
• Parties: HARRY F. SHOCKETT, administrator v. JOHN ALBERT AKESON. SAME v. JOHN T. McDEVITT.
• Court: Supreme Judicial Court of Massachusetts

310 Mass. 289

37 N.E.2d 1015

HARRY F. SHOCKETT, administrator v. JOHN ALBERT AKESON. SAME v. JOHN T. McDEVITT.

Supreme Judicial Court of Massachusetts, Middlesex.

November 24, 1941

October 28, 1941.

Present: FIELD, C.

J., DONAHUE, QUA COX, & RONAN, JJ.

Negligence, Motor vehicle, Use of way, Contributory. Practice, Civil, New trial.

Evidence did not require a finding of contributory negligence on the part of the operator of an automobile who was entitled to and took the right of way at an intersection where his automobile was in collision with a truck.

No abuse of discretion nor error appeared in the denial of a motion for a new trial based on a contention that damages found by a jury in an action for causing death were excessive.

TWO ACTIONS OF TORT. Writs in the First District Court of Southern Middlesex dated October 11, 1937.

On removal to the Superior Court, the actions were first tried together before F. T. Hammond, J., when in each action a verdict was returned for the plaintiff on a count for causing death in the sum of $5,725. Those verdicts on that count having been set aside there was a second trial before Donahue, J., and, in each action, a verdict for the plaintiff on that count in the sum of $6,038.72.

The cases were submitted on briefs. J. P. Donahue, for the defendants.

J. P. Driscoll & G.

F. Connors, for the plaintiff.

COX, J. These two actions of tort, tried together, are brought by the administrator of the estate of James T. Shockett to recover damages for the latter's death and conscious suffering resulting from the collision, at an intersection of public ways in the town of Framingham, of an automobile operated by the intestate and a truck owned by the defendant Akeson and operated by the defendant McDevitt, who at the time was acting within the scope of his employment. There were two trials. The judge at the first trial denied a motion in each case for a directed verdict subject to the defendants' exceptions, and the jury returned verdicts for the plaintiff on the counts in the declarations for death and for conscious suffering. Thereafter, on motions of the defendants, the verdict on the death count in each case was set aside, the plaintiff having refused to remit a portion thereof in accordance with the orders of the trial judge. The second trial was confined to the question of damages on the death counts. A verdict was returned for the plaintiff in each case, and motions for a new trial were denied subject to the defendants' exceptions.

1. The only contention of the defendants as to the first trial is that the plaintiff's intestate was contributorily negligent as matter of law.

The jury could have found that on a July afternoon the intestate was operating a coach automobile at a speed of about twenty miles an hour in a westerly direction on the right hand side of Lawrence Street, which crosses Grant Street at right angles. The weather was fair and the roads were dry. When the automobile was about twenty or twenty-five feet away from the intersection, it slowed down, and, as it entered the intersection, its speed was about twelve miles an hour. The width of the intersection in the direction the automobile was travelling was thirty-eight feet. When the automobile was about one third of the way into the intersection, the intestate's companion felt the application of the brakes and, at that time, she saw the truck, driven by the defendant McDevitt, approaching on her left, that is, from the south in the center of Grant Street and just about entering into the "intersecting line." The truck was travelling at about thirty to thirty-five miles an hour, and went twenty to...