Skerry v. Marzec

• Decision Date: 12 June 1970
• Citation: 260 N.E.2d 223,357 Mass. 784
• Parties: Francis E. SKERRY, administrator, v. Michael J. MARZEC et al. (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 223

260 N.E.2d 223

357 Mass. 784

Francis E. SKERRY, administrator,

v.

Michael J. MARZEC et al. (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 7, 1970.

Decided June 12, 1970.

David D. Leahy and Stuart DeBard, Boston, for defendants, submitted a brief.

Thomas B. Shea, Boston, for Francis E. Skerry, administrator. Robert V. Mulkern, Worcester, for Dorothy Aries and others, submitted a brief.

Before WILKINS, C.J., and CUTTER, KIRK, SPIEGEL and QUIRICO, JJ.

RESCRIPT.

In these two actions of tort for negligence in the operation of a motor vehicle, tried together before a judge without a jury, findings were made for the plaintiffs against the defendant operator. The cases are here on the defendants' consolidated bill of exceptions which shows that the judge, subject to exception, declined to rule that 'The evidence does not warrant a finding that * * * (the defendant operator) was negligent.' There was no error. The defendant operator testified that his vehicle, proceeding west on the Massachusetts Turnpike at a speed estimated by him as sixty miles an hour, passed a trailer truck, continued on until the trailer was 300 yeards behind, shot toward the median strip and rolled over or flipped into the air over the median strip, crashed into a Volkswagen causing it to burst into flames and killing the driver, and then struck another eastbound car, tearing off its roof and injuring the occupants. The judge was not required to believe the defendant's testimony of his speed or his opinion that the accident was caused by a 'tire blowout' when he was on the westbound roadway. The physical evidence did not support his testimony of a 'tire blowout.' The judge could infer that with the vehicle solely in the defendant's control, the accident, in light of all attending circumstances, was more likely due to the defendant's negligence than to any other cause. Gangi v. Adley Exp. Co., Inc., 318 Mass. 762, 764, 63 N.E.2d 897. Noon v. Before, 349 Mass. 537, 543--544, 209 N.E.2d 292, and cases cited.

Exceptions overruled.

1 Dorothy Aries & others v. Michael J. Marzec & another.