312 Mass. 97 | Mass. | 1942
This is an action to recover for personal injury and property damage alleged to have been sustained by the plaintiff when he drove his automobile into the rear of the defendant’s automobile on “Route 28,” a two lane concrete highway, in Windham in the State of New Hampshire, at about 8 f.m. on April 6, 1938. The only breach of duty on the part of the defendant of which the record discloses any evidence consisted in allowing his automobile to stand on the plaintiff's right hand lane without a lighted tail light. Such light is required by Public Laws of New Hampshire, c. 103, § 6, as amended by Laws of 1933, c. 105, § 2.
The plaintiff himself was the only witness on his side of the case who testified as to what occurred at the scene of the accident. According to his evidence he had rounded the “vertical curve” at the top of a hill and was going down the farther side at about forty or forty-two miles an hour, when he became aware of what “seemed like a dark object” with no light on it about sixty-five to seventy feet in front of him. At approximately the same time he noticed one
Evidence introduced by the defendant tended to paint a quite different picture. According to this evidence the road was under construction, and the north-bound lane, on which the plaintiff was travelling, was barred. Northbound traffic had to wait its turn to use the single free lane. The defendant’s automobile was the second of a line that was forming of waiting vehicles. Its tail light was burning. There were illuminated warning signs as one approached over the hill. There were “bombs” and “flares,” and persons were about, including a “flagman” with a flashlight. The plaintiff drove down the hill at a speed estimated at fifty miles an hour and, without slowing down, struck the defendant’s automobile, causing all three automobiles to crash together.
There was no error in refusing to direct a verdict for the defendant. The jury could believe the plaintiff’s story of the accident and reject that of the defendant, including the lights and warnings, however well substantiated the latter may appear to have been from the printed record. We must assume that the defendant’s tail light was unlighted. As we understand the law of New Hampshire, violation of the statute is more than mere evidence of negligence. It is in itself a breach of duty upon which a cause of action may be rested if it causes injury. Johnson v. Boston & Maine Railroad, 83 N. H. 350. Fontaine v. Charas, 87 N. H. 424, 426. Putnam v. Bowman, 89 N. H. 200, 202-203. See Eastman v. Herrick, 87 N. H. 58. The statute prescribed the standard of duty owed by the defendant at the time and place of the accident, and that standard must control wherever the case is tried. Peterson v. Boston & Maine Railroad, 310 Mass. 45, 47-48.
The defendant contends that violation of the statute
The defendant further insists that the plaintiff shows himself as a matter of law to have been guilty of contributory negligence. The question whether this was matter of law or of fact relates to the method of trial and is to be decided according to the law of the place of trial. Peterson v. Boston & Maine Railroad, 310 Mass. 45, 47-48. If the plaintiff’s evidence was believed, and the circumstances of the accident were as he testified them to be, the issue
There was no error in allowing the plaintiff’s motion to amend his declaration to conform to the proof on issues fully heard at the trial. Pizer v. Hunt, 253 Mass. 321, 330-333.
The defendant’s exception to the denial of his motion for a new trial on the ground that the verdict was against the law and the evidence and that the damages were excessive asks us, in substance, to hold that the trial judge abused his discretion in denying the motion. The field of discretion of the trial judge in these matters is very broad. Only
It is difficult to see how we could have sustained these exceptions whatever view we might have taken of the matters hereinbefore examined, since it appears from the bill of exceptions that the report of an auditor was read to the jury, and the report does not appear in the record. We do not know what findings of fact the auditor made. We have, however, discussed the case as the parties have presented it.
Exceptions overruled.