Wall v. King

• Decision Date: 31 October 1932
• Parties: WALL v. KING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 577

182 N.E. 855

WALL

v.KING.

Supreme Judicial Court of Massachusetts, Bristol.

Oct. 31, 1932.

Report from Superior Court, Bristol County; Patrick M. Keating, Judge.

Action by Patrick J. Wall against Charles B. King. Verdict for plaintiff. On report.

Judgment for plaintiff.

H. F. Hathaway, of Boston, for plaintiff.

A. E. Yont, of Boston, for defendant.

DONAHUE, J.

The plaintiff had been driving his automobile in a southerly direction in a lien of slowly moving heavy traffic on the westerly half of a highway which was constructed with a black strip of macadam eight feet wide in the center and a strip of concrete ten feet wide on each side of the macadam. The defendant had been driving his automobile in a northerly direction on the easterly side of the same highway in a similar line of traffic. The road was straight and level and there was an unobstructed view in either direction for not less than six or eight hundred feet. Each driver turned to his left from the strip of concrete on which he had been driving on his right hand side of the road on to the macadam and while travelling on that portion of the highway their automobiles collided. The case is in this court on a report after a verdict for the plaintiff.

[1] There was evidence tending to show that the plaintiff's automobile had left the westerly side of the road and was proceeding on the center strip of macadam when the defendant's automobile entered that area five or six hundred feet away; that the defendant was driving at the rate of forty miles an hour and, although the plaintiff, who was in full view of the defendant, slowed down, blew his horn and finally stopped when the defendant was seventy or eighty feet distant, the defendant's automobile without changing its course proceeded at undiminished speed and struck the plaintiff's automobile in a head-on collision. The defendant testified that he did not see the plaintiff's automobile until it was fifty feet away from him, that he could have stopped his car under existing conditions within twenty or thirty feet, and that he did not apply his brakes. It is plain that there was evidence which warranted the jury in finding that the defendant's speed was greater than was reasonable and proper under the circumstances (G. L. c. 90, § 17, Walsh v. Gillis, 276 Mass. 93, 176 N. E. 802), that he made no attempt to avert an avoidable collision, and that he was negligent.

[5] The plaintiff introduced evidence tending to show that while he was still travelling in the line of traffic on the concrete strip on the westerly half of the road, two other automobiles which had been behind him pulled out of the line of vehicles on to the macadam strip and passed him. When they had gone two or three hundred feet beyond, he too pulled out of line from behind a slow driver, who was going at the rate of ten or twelve miles an hour, on to the macadam and followed them. After the two automobiles ahead had turned back into the line of traffic on the westerly side of the road, the defendant's automobile turned from the line of traffic on the concrete strip on the easterly portion of the road on to the macadam and collided with the plaintiff's automobile in the manner earlier described. When the plaintiff first pulled on to the macadam he knew that between the two lines of traffic there was not room for two automobiles to pass, he could then see no opening in the half mile of traffic which was ahead of him and knew that it would be hard to get back into the line. He testified that when he saw the defendant's car coming toward him he pulled to his right to within a foot or half a foot of the line of automobiles proceeding on the westerly strip of concrete and that at the time of the collision the right hand side of his automobile was on the macadam strip and ‘within one foot or closer to’ its westerly edge. Witnesses called by the plaintiff testified, in effect, that the left side of the plaintiff's automobile was westerly of the center line of the road when it was struck. We do not here pass upon the contention of the plaintiff that he is not bound by his own testimony as to the position of his automobile but may rely on the differing testimony of his witnesses. Hill v. West End Street Railway Co., 158 Mass. 458, 33 N. E. 582;Whiteacre v. Boston Elevated Railway Co., 241 Mass. 163, 134 N. E. 640;Boni v. Goldstein, 276 Mass. 372, 177 N. E. 581. For the purposes of this opinion we assume that his automobile was where he testified it was, that is, that some part of it was across the middle line of the highway, on his left of the center, and further assume that he violated G. L. c. 89, § 1, which required him, on meeting a vehicle, seasonably to drive to the right of the middle of the travelled part of the way, and G. L. c. 89, § 4, which required him, whenever safe and practicable so to do, to keep his vehicle to the right of the middle of the travelled part of the way when there was not an unobstructed view of the road for at least one hundred yards.

While evidence of the violation of a...