Stone v. Mullen

• Decision Date: 28 October 1926
• Citation: 257 Mass. 344,153 N.E. 565
• Parties: STONE v. MULLEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

257 Mass. 344

153 N.E. 565

STONE

v.MULLEN et al.

Supreme Judicial Court of Massachusetts, Berkshire.

Oct. 28, 1926.

Appeal from District Court of Northern Berkshire; C. T. Phelps, Judge.

Action of tort by Theodore Stone against John L. Mullen and others to recover damages to plaintiff's automobile which collided with defendant's truck. From an order of the Appellate Division directing judgment for defendants, plaintiff appeals. Affirmed.

Automobiles k211-Driver of automobile, damaged in collision with defendant's unlighted truck standing on highway shortly after sunset, held negligent.

In owner's action for injury to automobile which collided with unlighted truck standing on highway shortly after sunset, facts held to show automobile driver's negligence as matter of law, where truck could have been observed from distance of 100 yards.

M. E. Couch and J. B. Boland, both of North Adams, for appellant.

W. J. Donovan, of Adams, for appellees.

SANDERSON, J.

An automobile, driven by the plaintiff, was damaged as the result of coming in contact with a truck belonging to the defendant, and the question presented for decision is whether, as matter of law, the plaintiff failed to exercise due care.

The accident occurred on April 15, 1925, on the road from Williamstown to North Adams with the truck headed toward North Adams. It had run out of gas and was at a standstill well on the right-hand side of the road, which was of concrete, of ample width, and from the point of the accident westerly for several hundred yards practically straight and level. Its surface was dry and the night clear. The truck was not lighted. The exact hour of the accident was in dispute. Some of the testimony tended to show that it was then not a half hour after sunset, but the report states that:

‘There was evidence upon which the court could find that it was growing dusk and more than a half hour after sunset, provided the court had the right to take judicial knowledge of the time that the sun set on the day of collision.’

At the time of the accident some automobiles being operated along the road were lighted and some were not. The truck was about six feet in width and was loaded to approximately ten feet in height with cotton bales of grayish color showing white spots of cotton here and there at the rear end.

The plaintiff, driving in the direction in which the truck was headed, approached it from behind. He testified that his eyesight was perfect, his car in good running order, the windshield clean, the brakes in first class condition,...