Dzura v. Phillips, 275 Mass. 283

Dzura v. Phillips

275 Mass. 283 | Mass. | 1931

Wait, J.

Satija Dzura and her husband, Stanislaw Dzura, were riding as guests of the defendant in his automobile, when, in attempting to pass to the left of a taxicab *288driven by one Benevuti, the defendant, to avoid a collision as the taxicab swung to its left, so managed his vehicle that it skidded and was thrown against a tree. The wife was injured. Her husband was killed. These actions were brought by her, one to recover for the injury to herself, the other, as administratrix of the deceased, to recover under G. L. c. 229, § 5, as amended by St. 1922, c. 439, and St. 1925, c. 346, § 9, the penalty for causing his death. After verdicts for the plaintiff, the defendant contends that there was error in refusing to direct verdicts for the defendant; in the admission of evidence; in refusing to instruct that “The plea of guilty testified to in the examination of the defendant cannot be considered by the jury upon the question of culpability of the defendant”; and in the portion of' the charge relating to the request.

' The evidence, taken most strongly for the plaintiff, would justify the following findings: The defendant, familiar with the locality, approaching a point on the State road in Sturbridge where driveways to the Elms Hotel and to the post office entered the road from his left, and following Benevuti’s automobile, was driving at the rate of thirty-five miles per hour. Benevuti, desiring to stop at the post office, slowed somewhat, put out his hand to indicate a left turn, and drove to his left to enter the driveway. He saw in the mirror before him the defendant’s car approaching rapidly, with no apparent slackening of speed. He crossed in front of it, immediately heard a crash, and stopped. The defendant, disregarding or not seeing the outstretched hand, put on additional speed to pass to the left of Benevuti; and, finding him crossing in front, swung more to the left, ran upon street car tracks at the side of the road, put on his brakes, skidded and brought up against a tree. Whether he blew a horn to warn Benevuti of his intention to pass was disputable. For the purpose of deciding whether to direct a verdict, the trial judge was bound to assume that he did not. We find nothing in the cases cited by the defendant which required the trial judge to direct verdicts for the defendant on the ground that, as matter of law, the evidence was insufficient to support a finding of gross neg*289ligence — “an act or omission respecting legal, duty of.an aggravated character as distinguished from a mere failure to exercise ordinary care.... a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence . . . the omission of even such diligence as habitually inattentive and careless men do not fail to exercise in avoiding danger to their own person or property.” Altman v. Aronson, 231 Mass. 588, 591, 592, 593. The exact details of the locality of. the accident, of the relative position of the intersecting driveways or streets, of the conditions of highway and street railway surface, of speed, distances, precautionary signals, could only be determined by the jury from the conflicting testimony. It cannot be said properly that here there is no combination of circumstances which can amount to gross negligence. Different situations existed in Cook v. Cole, 273 Mass. 557, Clay v. Pope & Cottle Co. 273 Mass. 40, and Cannon v. Bassett, 264 Mass. 383. Those decisions are not controlling on the facts which might here be found. In the action for death, proof of simple negligence was sufficient. Flynn v. Lewis, 231 Mass. 550. The cases fall within the decisions in Healy v. O’Riley, 257 Mass. 413, Manning v. Simpson, 261 Mass. 494, Rog v. Eltis, 269 Mass. 466, Blood v. Adams, 269 Mass. 480, McCarron v. Bolduc, 270 Mass. 39, Kirby v. Keating, 271 Mass. 390, Logan v. Reardon, 274 Mass, 83, Parker v. Moody, 274 Mass. 100.

Three exceptions may be disposed of together. They relate to the admission and use of evidence that the defendant was familiar with the requirements of the statute, G. L. c. 90, § 24, as it then stood relating to the operation of a motor vehicle so as to endanger the lives and safety of the public. He testified, against exception, that he was familiar with the statute and that he had pleaded guilty to a charge of violating it in connection with this accident. No record was introduced. No insistence was made on the form of the questions or the absence of the record. The judge rightly instructed the jury that, as the law stood at the time, no question of negligence was raised in a prosecution *290under the statute. Commonwealth v. Pentz, 247 Mass. 500. He charged that, in consequence, a plea of guilty on that complaint did not admit and could not of itself be considered by the jury as an admission of negligence; but that, since culpability was an issue in the action, the plea could be given in evidence, and could be considered on that issue. In this he was right. Under the statute, although the damages awarded are a penalty, and are to be assessed, not as compensation for the loss inflicted, but according to the degree of blameworthiness inherent in the fatal act under all the circumstances of the accident, Boott Mills v. Boston & Maine Railroad, 218 Mass. 582, Fairbanks v. Kemp, 226 Mass. 75, the jurors, not the judge, determine that degree. An admission of any degree of culpability is competent evidence for the jury to consider in its award. It stands like any admission of a fact material to the ascertainment of damages. No question of credibility was raised. It has been decided that a witness may be asked as an admission of the fact charged whether he has pleaded guilty in a criminal matter. The question and answers are admissible, if the admission is competent evidence. Commonwealth v. Fortier, 258 Mass. 98.

On another ground the admission of guilt was admissible. A violation of a statute is some evidence of negligence under our decisions. Milbury v. Turner Center System, 274 Mass. 358, 361. What weight to .give it is for the jury under proper instructions such as were here given. The contention that the admission of such evidence is error because it subjects a defendant to double punishment, once, in the penalty imposed in the criminal proceeding, and again in the award of damages in the action for causing a death, is without merit. The offences are different, and, where this is true, penalties are not obnoxious to the principle forbidding double punishment. Commonwealth v. Crowley, 257 Mass. 590. Commonwealth v. Tenney, 97 Mass. 50. We, therefore, find no error in the admission of this evidence, in the refusal of the request or in the portion of the charge dealing with them.

The exception to the admission of a statement of Stan*291islaw Dzura in criticism of the defendant’s driving before the accident is not well taken. ’ Obviously the statement was made in good faith, before the bringing of the action, of his own knowledge, by one who died before the trial. Counsel did not direct the attention of the judge to the necessity that these elements should be found to be true before admitting the evidence. We must assume that, in admitting it, the judge found that the requirements of G. L. c. 233, § 65, were met. Heathcote v. Eldridge, 226 Mass. 168. Horan v. Boston Elevated Railway, 237 Mass. 245, 247.

Exceptions overruled.