Vanalstyne v. Whalen

Decision Date22 February 1983
PartiesDavid A. VANALSTYNE, Jr. v. Richard WHALEN.
CourtAppeals Court of Massachusetts

David O. Burbank, Pittsfield, for defendant.

John J.C. Herlihy, Boston (Karen M. Thursby, Boston, with him), for plaintiff.



In this personal injury case tried to a jury in the Superior Court, the defendant challenges orders of the trial judge denying his motion for a directed verdict, Mass.R.Civ.P. 50(a), 365 Mass. 814 (1974), allowing the plaintiff's motion for relief from the judgment, Mass.R.Civ.P. 60(b)(2), 365 Mass. 828 (1974), and ordering a new trial solely on the issue of damages because of newly discovered evidence. The defendant contends that there was no evidence to show that he operated a motor vehicle negligently, or if he did so operate, to show that his negligence was the proximate cause of the plaintiff's injuries. He further contends that evidence that the plaintiff began to suffer from epilepsy shortly after the judgment was entered was not "newly discovered" within the meaning of that term in rule 60(b)(2). We find no error.

1. We summarize the relevant evidence in the light most favorable to the plaintiff, see Everett v. Bucky Warren, Inc., 376 Mass. 280, 282, 380 N.E.2d 653 (1978), under the familiar standard applicable to motions for directed verdicts grounded on the sufficiency of the plaintiff's case. Such motions must be denied if "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff." Raunela v. Hertz Corp., 361 Mass. 341, 343, 280 N.E.2d 179 (1972), quoting from Kelly v. Railway Exp. Agency, 315 Mass. 301, 302, 52 N.E.2d 411 (1943). See also Alholm v. Wareham, 371 Mass. 621, 627, 358 N.E.2d 788 (1976); Uloth v. City Tank Corp., 376 Mass. 874, 876, 384 N.E.2d 1188 (1978), and cases cited.

In June, 1978, the plaintiff, age fifteen, was living with his parents on Undermountain Road in Lenox. He was at the time approximately four feet eight inches tall and was considered extremely small for his age.

Sometime during the afternoon of Sunday, June 25, 1978, the plaintiff met three friends: James Prince, Gary Roy, and the defendant Richard Whalen, age seventeen. The four young men spent the afternoon together, separated to have dinner at their respective homes and congregated again at approximately 6:15 P.M. to go swimming at the plaintiff's house. About 7:00 P.M., the defendant, who had been licensed to operate motor vehicles for at least six months, prepared to leave with Roy. The defendant was driving his father's automobile, a 1973 two-door Chevrolet Impala sedan with automatic transmission. Roy was in the passenger seat. While the defendant was backing the vehicle out of the driveway of the VanAlstyne home, the plaintiff discovered that the defendant had left a towel behind. The plaintiff, who was dressed in a shirt and gym shorts, went around to the driver's side of the vehicle with the towel. The plaintiff and defendant then began conversing through the open driver's side window, the plaintiff walking alongside as the defendant backed the automobile into the street. At this point, the plaintiff was beside the automobile and leaning on its door. The defendant then drove forward.

The passenger Roy testified that he observed the plaintiff leaning on the automobile and talking to the defendant as the vehicle proceeded southerly on Undermountain Road. Roy described the plaintiff as continuing to "shuffle" alongside the moving vehicle at a pace "like a fast run" for fifteen or twenty feet as the automobile accelerated. Roy then looked away and did not again observe the plaintiff until after the accident. According to Roy, the automobile reached a speed between twenty-five and thirty miles per hour before it stopped. The defendant testified that the plaintiff remained alongside his automobile as it proceeded south on Undermountain Road, at times coming as close as six inches to the vehicle. The defendant also testified that he was aware of the plaintiff's presence beside the moving vehicle for approximately 210 to 230 feet while he continued to increase the vehicle's speed. Although the defendant was no longer aware of the plaintiff after the vehicle had travelled slightly more than 200 feet, he made no attempt to slow down or stop. The defendant later told the plaintiff's mother that "Davie [the plaintiff] was hanging on to the car ... with his elbows and then ... he was gone."

The defendant, continuing to drive, observed the plaintiff in his rearview mirror, lying on the road. Upon seeing him, the defendant immediately brought the vehicle to a skidding stop approximately 460 to 465 feet from the point where it had started. The plaintiff was face down, to the left of the road's center relative to the vehicle's direction of travel, and approximately fifteen to twenty feet behind the stopped automobile. The plaintiff suffered severe injuries which left him in a coma for three days and caused bizarre behavior after he woke from the coma. He had no memory of the incident. Although the plaintiff is a diabetic, his neurosurgeon testified that his coma and unusual behavior during recovery were the result of and consistent with a bifrontal cerebral contusion with swelling and areas of hemorrhage in the brain caused by an automobile accident rather than a diabetic coma. Both this physician and the otolaryngologist who set the plaintiff's fractured nose generally agreed that his injuries were "inconsistent with a simple fall for whatever reason."

On the foregoing evidence the jury could infer: (a) that the plaintiff was leaning on the windowsill on the driver's side of the vehicle after it backed out of the driveway and had begun to accelerate; (b) that he continued to be in contact with or close to the vehicle, running alongside the driver's side as the automobile gained speed; (c) that the plaintiff at a point about 210 to 230 feet southerly of the vehicle's starting point had either purposely grabbed onto, or inadvertently come into contact with, some part of the automobile which by then was accelerating rapidly; and (d) that he continued to be in contact with the moving vehicle for some two hundred feet, until it attained a speed of between twenty-five and thirty miles per hour, at which point he lost contact and was thrown to the pavement. Based on evidence of the plaintiff's presence alongside the accelerating vehicle for approximately 210 to 230 feet, and the defendant's conversation with the plaintiff's mother, the jury could conclude that the defendant should have foreseen the danger to the plaintiff occasioned by his proximity to and contact with the moving vehicle and avoided it by stopping or slowing the automobile. The jury could also find that alternative causes of the accident had been satisfactorily excluded. There was no evidence of another vehicle which might have struck the plaintiff. The evidence that the plaintiff was alongside the vehicle for some distance and then "was gone" made it appear unlikely that he had hitched a ride on the back of the automobile. The fact that there was no precise explanation of exactly how the plaintiff might have become attached to the side of the vehicle is not fatal to recovery. This aspect of the proof, in our view, is governed by the principle that a plaintiff need not prove the exact manner in which the accident happened so long as he proves that there was a greater probability that the harm complained of was due to causes for which the defendant was responsible than any other cause. Power Serv. Supply, Inc. v. E.W. Wiggins Airways, Inc., 9 Mass.App 122, 128, 399 N.E.2d 878 (1980), and cases cited; Restatement (Second) of Torts § 433B, comment b (1965). Taking all of the circumstances disclosed by the evidence in the light most favorable to the plaintiff, the jury were warranted in concluding that the defendant should not have "ignore[d] the presence of the [plaintiff]," and that he failed "to use a degree of care commensurate to the probable harmful consequence that might result ... from the lack of the exercise of such care." Hanlon v. White Fuel Corp., 328 Mass. 455, 457-458, 104 N.E.2d 424 (1952). See also Margeson v. Town Taxi, Inc., 266 Mass. 192, 194, 165 N.E. 20 (1929); DaSilvia v. Dalton, 322 Mass. 102, 103, 76 N.E.2d 8 (1947); Barry v. Panich, 324 Mass. 162, 163-164, 85 N.E.2d 251 (1949), and cases cited. Cf. Zezuski v. Jenny Mfg. Co., 363 Mass. 324, 327-331, 293 N.E.2d 875 (1973). The judge properly denied the defendant's motion for a directed verdict and left the issues of the defendant's negligence and the plaintiff's contributing negligence to the jury.

2. The jury returned a verdict and, in answer to special questions, found the defendant negligent and the plaintiff contributorily negligent, fixed the percentages of negligence at sixty-five and thirty-five percent respectively, and awarded total damages of $50,000. The evidence at trial as to the plaintiff's injuries was substantially uncontradicted and may be summarized as follows. While still at the scene of the accident, the plaintiff stopped breathing twice and was mechanically revived. He arrived at the hospital semi- comatose from his head injuries (which as previously noted included a bifrontal cerebral contusion and brain hemorrhage) and with multiple abrasions on his head, torso and extremities. He regained consciousness on the fourth day following. He exhibited spasmodic muscle contractions and unusual restlessness and irritability which generally decreased during the course of a three-week hospital stay. The irritability continued somewhat, however, after his return home. There was evidence of permanent impairment of his intellectual and memory functions. He also suffered serious injuries...

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