Standard Oil Co. of New York v. Johnson, 1714.

• Decision Date: 15 May 1924
• Docket Number: 1714.
• Citation: 299 F. 93
• Parties: STANDARD OIL CO. OF NEW YORK v. JOHNSON.
• Court: U.S. Court of Appeals — First Circuit

299 F. 93

STANDARD OIL CO. OF NEW YORK v. JOHNSON.

No. 1714.

United States Court of Appeals, First Circuit.

May 15, 1924

Herbert Parker, of Boston, Mass. (Everett B. Horn, of Boston, Mass on the brief), for plaintiff in error.

Asa P French, of Boston, Mass. (Jonathan W. French, of Boston Mass., on the brief), for defendant in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON Circuit Judge.

This was an action of tort to recover for the death and conscious suffering of the plaintiff's intestate, Ivar W. Johnson a boy 14 years old, whose injuries and death were caused by being struck, about 1:15 p.m. on April 13, 1921, by a motor truck operated by defendant's agent.

The suit was brought under G.L. Mass. c. 229, Secs. 5, 6, under which damages are to be assessed with reference to the degree of culpability of the defendant or of his agent. The case was begun in the superior court of Massachusetts, but removed by the defendant to this court. The answer is a general denial, plus an allegation of contributory negligence by the plaintiff's intestate. The jury took a view of the scene of the accident and its surroundings.

At the end of a three-day trial, Judge Hale denied the defendant's motion for a directed verdict, and submitted the case to a jury under a careful charge, the fairness and soundness of which are not challenged by the defendant's learned counsel, if the case was for the jury at all. A motion for a new trial, on the usual grounds, including the contention that the verdict was against the weight of the evidence, was also denied, with an opinion showing careful reconsideration of the case.

The defendant's main contentions are as to contributory negligence and as to the admission of the statement of a bystander as a part of the res gestae.

The accident occurred at a bridge over the New Haven Railroad on Norfolk street, Boston, which runs from Boston to Mattapan. The truck which struck young Johnson was moving from Mattapan towards Codman Square, Boston. Prior to the accident, Johnson, with a number of other boys, had met at the school noon hour, and had seated themselves on the girder, or middle truss, of this bridge, where they were passing the time in 'talking and joking,' but without any 'rough house or anything of that kind. ' About 1:15 there was a general start to return to school. Three or four boys had crossed from the middle of the bridge, diagonally across the street, towards the sidewalk; then the Johnson boy arose, and followed pretty close after the boy just ahead of him, just as the defendant's five-ton truck, 23 or 24 feet long, moving 6 to 8 miles an hour, came over the bridge. There was, as defendant concedes, evidence that the driver did not blow his horn or give any warning of any kind. Young Johnson was struck by the left-hand forward fender; his head and chest were badly injured, and he was thrown under the rear wheel. The truck stopped, with one foot caught under the rear wheel, so that the truck had to be recranked and started before the boy could be released.

The evidence on both sides, including the statement of the driver, who had died before the trial (admitted under G.L. Mass. c. 233, Sec. 65), placed the time of the accident at about 1:15. A train was due to pass under this bridge at that moment. There is direct evidence from one or more witnesses, including the evidence of the boy who crossed just ahead of young Johnson, that at that time smoke from the engine came up through the bridge, so that it would block the view towards Mattapan, and the noise of the train would deaden the sound of the truck on the bridge.

There is also direct evidence, which finds some support in the statement of the defendant's driver, that, as the truck crossed the bridge, one boy, apparently Wasserman, who immediately preceded Johnson, passed so closely in front of the truck that 'it just barely avoided hitting him'; that the driver then 'cut his wheel to the left part of the bridge,' thus avoiding the other boy, but striking Johnson.

On this meager statement-- which, of necessity, reproduces the situation somewhat less accurately than it is shown to us with the aid of plans and photographs, and very much less satisfactorily than it must have appeared to the jury who saw the locus, and to the trial judge, who had the advantage of hearing all the witnesses, and listening to the illuminating arguments of counsel familiar with every detail of the locus and of the situation-- it is apparent that the jury might have found that the accident was caused as follows:

That the driver, without sounding his horn, drove his long, heavy truck up an incline over the bridge to a point where the grade was somewhat descending, and saw these boys, gathered on his left, only a few feet from his line of approach; that just at that moment smoke from the train passing underneath obscured the view both to him and to the boys; that the noise made by the train would deaden the sound of any vehicle coming up from Mattapan; that as he passed toward the end of the bridge, where the grade was slightly descending, he found himself almost in collision with the Wasserman boy, who was just passing out of his line of approach; that he then put on the brakes, and at the same time cut his wheel toward the left, thus striking and fatally injuring the Johnson boy; that the truck then moved about 13 or 14 feet, and stopped with the rear wheel pinning the Johnson boy to the street.

Under such circumstances, we think it plain that both questions-- the negligence of the driver and the Johnson boy's contributory negligence-- were for the jury. 'Ordinarily these are issues of fact for the jury; and no facts are disclosed in the present case to take it out of this general rule. ' Both statements, quoted from the opinion of the court in Hennessey v. Taylor, 189 Mass. 583, 584, 76 N.E. 224, 3 L.R.

(N.S.) 345, 4 Ann.Cas. 396, are applicable to this case. Compare Purtell v. Jordan, 156 Mass. 573, 31 N.E. 652; Scannell v. Boston Elevated, 176 Mass. 170, 173, 57 N.E. 341, and cases cited.

The decisions do not leave us at liberty to adopt the contention of defendant's learned counsel, which, in effect, would require us to apply the rules of law applicable to the conduct of pedestrians in crossing a car track, or perhaps at a steam railroad grade crossing. Under the conditions herein disclosed, a pedestrian was not subject to the 'stop, look, and listen' rule. Cases supra. If we assume, in the defendant's favor, that there is evidence that the Johnson boy did not look in the direction of the approaching truck after he rose from the truss of the bridge to cross the street, yet, as pointed out by Judge Hale in his opinion in denying the motion for a new trial, 'there is no testimony as to how much he looked before he rose to cross the street. ' The victim of this accident died without giving his version of the accident, or stating what precaution he took before exercising his undoubted right to cross the street. The old rule, under which so many meritorious cases failed, because due care could not be affirmatively shown, is no longer the law of Massachusetts, for under G.L. Mass. c. 231, Sec. 85:

' * * * The person injured or killed shall be presumed to have been in the exercise of due care, and contributory negligence on his part shall be an affirmative defense to be set up in the answer and proved by the defendant.'

If we assume, without deciding, that, when in this federal court we are dealing with a case grounded on a Massachusetts statute, the ruling of the Massachusetts court-- to the effect that, under certain conditions, contributory negligence is still a question of law for the court (Duggan v. Bay State Street Railway, 230 Mass. 370, 119 N.E. 757, L.R.A. 1918E, 680; Gibb v. Hardwick, 241 Mass. 546, 135 N.E. 868)-- we are, nevertheless, constrained to the view that on the evidence in this case, giving the defendant the full benefit of the Massachusetts rule, contributory negligence was for the jury (Hennessey v. Taylor, supra; Purtell v. Jordan, supra; Creedon v. Galvin, 226 Mass. 140, 115 N.E. 307).

As stated by Rugg, C.J.

in Duggan v. Bay State Street Railway, 230 Mass. 370, 379, 119 N.E. 757, 760 (L.R.A. 1918E, 680):

'It is only in comparatively rare instances that it can be ruled as matter of law that a burden of proof depending upon oral testimony has been sustained.'

See, also, McDonough v. Metropolitan Life Ins. Co., 228 Mass. 450, 452, 117 N.E. 836, 837, where the same learned Chief Justice says:

'It is rarely that it can be ruled as matter of law that the burden has been sustained. This is especially true when the attempt to sustain that burden rests upon oral testimony introduced by the party upon whom the burden rests, and upon inferences from circumstances.'

Under the Massachusetts rule, due care becomes a question of law as stated by Rugg, C.J., in Duggan v. Bay State Street Railway, 230 Mass. 370, at page 379, 119 N.E. 757, 760 (L.R.A. 1918E, 680), only:

'Where from the facts which are undisputed or indisputable, or shown by evidence by which the plaintiff is bound, only one rational inference can be drawn and that an inference of contributory negligence or

...