304 Mass. 500 | Mass. | 1939
These are sixteen actions of tort which, with other cases, were heard together before an auditor whose findings of fact were to be final. The auditor filed a single report.
These cases arise out of a collision between an automobile driven by Avery and a large oil tank truck driven by one Bishop, as servant of the defendant R. E. Guerin Trucking Co., Inc., at the intersection of Shrewsbury Street and Winona Street in Worcester at one o’clock in the morning of December 12, 1937. Shrewsbury Street is one hundred feet wide and runs substantially east and west. It is seventy-eight feet wide from curb to curb. There is a curbed grass reservation eight feet wide in the center of the street which divides the highway for eastbound and westbound traffic, there being three lanes for traffic on each side of this reservation. The street is of concrete construction with a smooth but good gripping surface. Winona Street is about thirty-three feet wide as it enters the southerly side of Shrewsbury Street, and there is a break in the grass reservation opposite Winona Street, thirty-five feet distant,
Avery and his companion sued the trucking company. There is an action for the death of a woman who resided in the neighborhood. The other actions are for personal injuries sustained by occupants of dwellings in the vicinity and for damage to their buildings.
The auditor found that Avery was driving at a speed greater than was proper; that if he had been proceeding at a reasonable speed as he approached the intersection and had exercised reasonable caution, he could have seen the
The cases were submitted to the Superior Court upon the report of the auditor. The report of the auditor whose findings of fact are final is in effect a case stated. Zarthar v. Saliba, 282 Mass. 558. Raymond v. Davies, 293 Mass. 117. The questions to be decided are whether the findings of the judge, made in each of these cases upon motions for judgment, were correct. These findings are in substance orders for judgments and are to be considered as such. Pesce v. Brecher, 302 Mass. 211. Lawrence v. Old Silver
Avery was operating an automobile along a public way and approaching an intersection of another way at a speed of fifty to sixty miles an hour. His automobile crashed head on into the side of a truck which must have been visible to him for an appreciable period before the collision. He continued along his left-hand traffic lane when by driving along his right-hand or southerly lane he might have averted the accident by passing the rear of the truck. The conclusion of the auditor was right that Avery was negligently operating the automobile and that his negligence helped to cause the collision. The judge also was right in ordering judgment in the amount found by the auditor in the case in which Avery was a defendant, and in ordering judgment for the trucking company in the action of Avery against it. Bogert v. Corcoran, 260 Mass. 206. Regan v. Rosenmark, 272 Mass. 256. Ferreira v. Zaccolanti, 281 Mass. 91. Mendler v. Town Taxi, Inc. 295 Mass. 90. Colby v. Clough, 301 Mass. 52.
Bishop, having reached the intersection before Avery, had the right of way under G. L. (Ter. Ed.) c. 89, § 8, but that did not exempt him from exercising reasonable care to avoid injury to other travellers upon the way. He was operating a long vehicle whose length was sufficient as it reached certain positions in its journey across the street to block temporarily all eastbound traffic on this main artery of travel. He was driving a ten-wheel truck whose speed could not be quickly increased, and this factor, together with its size and weight, would render the vehicle incapable of rapidly changing its position if confronted with an emergency. Moreover, this truck was conveying forty-five gallons of an inflammable fluid in a receptacle located upon the left side of the vehicle. The degree of care that he was bound to exercise
The order for judgment for the plaintiff in the case against Avery is affirmed; the order for judgment for the defendant in the case of Avery against the trucking company is affirmed; but in the opinion of a majority of the court the orders for judgment for the defendants in the twelve remaining cases against the trucking company and in the two cases against Bishop must be reversed, and in these fourteen cases judgments entered for the respective plaintiffs in the amounts found by the auditor.
So ordered.