Smith v. Brown

• Citation: 302 Mass. 432,19 N.E.2d 732
• Parties: SMITH v. BROWN.
• Decision Date: 02 March 1939
• Court: United States State Supreme Judicial Court of Massachusetts

302 Mass. 432

19 N.E.2d 732

SMITH

v.BROWN.

Supreme Judicial Court of Massachusetts, Hampden.

March 2, 1939.

Exceptions from Superior Court, Hampden County; Broadhurst, Judge.

Action by Dorothy S. Smith against Joseph L. Brown to recover compensation for personal injuries alleged to have been sustained in an automobile accident. On defendant's exception to the denial of a motion for a directed verdict in his favor.

Exceptions overruled.

H. A. Moran, of Springfield, for plaintiff.

Simpson, Clason & Callahan, of Springfield, for defendant.

FIELD, Chief Justice.

This is an action of tort to recover compensation for personal injuries sustained by the plaintiff when the automobile in which she was riding collided with a motor truck in the State of Connecticut. The case comes before us on the exception of the defendant to the denial of a motion for a directed verdict in his favor. The only contention argued by him is that such a verdict should have been directed on the ground of the contributory negligence of the plaintiff. There was no error in this respect.

Since the case was brought in this Commonwealth its law-the law of the forum-governs matters of procedure and the familiar rules apply that the burden of proving contributory negligence is on the defendant, that a verdict cannot be directed for the defendant on this ground unless the evidence as matter of law required a finding of such negligence, and that the plaintiff is bound by her own testimony except as there is other evidence more favorable to her, see G.L.(Ter.Ed.) c. 231, § 85; Sooserian v. Clark, 287 Mass. 65, 67, 191 N.E. 763, but the question whether the facts bearing on the plaintiff's conduct required to be found on the evidence show as matter of law that she was guilty of contributory negligence is a question of substantive law to be determined by the law of Connecticut-the place where the collision occurred. Levy v. Steiger, 233 Mass. 600, 124 N.E. 477. It is provided by G.L.(Ter.Ed.) c. 233, § 70, that the court shall take judicial notice of the law of another State, but we are not required to take judicial notice of the law of another State except as it is brought to our attention by the record or the briefs. Bradbury v. Central Vermont Railway, Inc., Mass., 12 N.E.2d 732, and cases cited. Several Connecticut decisions have been brought to our attention.

Evidence upon which the plaintiff relies to show negligence of the defendant tended to show that the automobile in which the plaintiff was riding-which was being operated by her husband-struck the defendant's motor truck which was standing, without its tail-light being lighted, on the right-hand side of the highway. No contention is now made by the defendant that under Connecticut law it could not have been found that the defendant was negligent and we do not discuss this issue. The defendant's contention is, in substance, that the plaintiff failed to exercise due care for her own safety, as the result of which failure the collision occurred and she was injured.

Material testimony of the plaintiff was as follows: The accident occurred at night ‘in the neighborhood of quarter of eleven to eleven o'clock.’ It ‘was raining and blowing very hard.’ She was riding on the front seat of the automobile with her husband. She had ‘driven a car for twelve years.’ The automobile was on the righthand side of the road travelling about thirty miles an hour. There was no windshield wiper on her side of the automobile, but she could ‘see through...