321 Mass. 174 | Mass. | 1947
This is an action of tort brought on behalf of a minor, Roy B. Hinckley. The declaration as originally drawn contained a count for personal injuries and a count for property damage. By amendment a third count was added in which Daniel W. Hinckley, the father of Roy, sought consequential damages. See G. L. (Ter. Ed.) c. 231, § 6A, as inserted by St. 1939, c. 372, § 1. The counts for personal injuries and property damage were submitted to the jury, and verdicts for the plaintiff were returned. The judge directed a verdict for the defendant on the count for consequential damages. The case comes here on exceptions of the defendant and the plaintiff Daniel W. Hinckley.
The jury could have found these facts: The accident happened on March 4, 1943, in that part of Billerica Street in Chelmsford known as Central Square. West of Central Square three streets converge in an easterly direction “in a somewhat' Y’ formation” with the base of the “Y” crossing a railroad track and thence running easterly through a small business area. The three streets comprising the “Y” are from north to south, respectively, North Road, Westford Road and Littleton Road. From the point where these streets converge, west of the railroad track, to the track there is a gradual down grade. The street thus formed becomes Billerica Street east of the track and constitutes Central Square. It is sixty feet wide.
On the day of the accident at about 7:45 a.m., a trailer truck of the defendant
At some point east of the track the plaintiff “was struck from the rear by the defendant’s truck.” He was found lying unconscious in Central Square one hundred thirty-five feet east of the track and about seventy feet east of where his damaged bicycle was found.
1. The defendant excepted to the denial of its motion, for a directed verdict and to the submission of a special ques-tian to the jury by the judge. ' These exceptions must be overruled. The principal contention of the defendant in support of its motion for a directed verdict is that the
The defendant’s contention that it was not negligent cannot be sustained. It could have been found that the defendant’s truck was not proceeding at a reasonable speed as shown by the facts that the trailer was “weaving from left to right” and that it did not come to a stop for some
The judge subject to the defendant’s exception submitted the following question to the jury, “Whether or not the rear of that trailer swerved and struck the plaintiff.” The jury answered this in the affirmative. The judge declined to ask the jury, as requested by the defendant, “Whether or not the bicycle swerved into the truck at the time the truck swerved into the boy.” The defendant urges that the question submitted directed the jury’s attention to but one aspect of the evidence and tended to give it an emphasis out of proportion to the rest of the evidence. Inasmuch as there was evidence that both the bicycle and the truck were swerving when they collided, the judge might very properly have put the question requested by the defendant. But we cannot say that he erred in submitting only the question to which the defendant excepted. It is a well recognized part of our trial practice that a judge in his discretion may submit special questions to a jury, and no valid exception lies to the exercise of that power. Mercier v. Union Street Railway, 234 Mass. 85, 87. Guinan v. Famous Players-Lasky Corp. 267 Mass. 501, 520. Stone v. Orth Chevrolet Co. Inc. 284 Mass. 525, 528. Wallace v. Ludwig, 292 Mass. 251, 259.
2. We think that the judge erred in directing a verdict for the defendant on the count for consequential damages. It is settled that an action for consequential damages stands no better than the principal case and falls when the latter falls. Thibeault v. Poole, 283 Mass. 480. Brazinskos v. A. S. Fawcett, Inc. 318 Mass. 263, 267. But it does not follow that such an action must stand whenever the principal case stands. The reason for this is that in an action to recover consequential damages the plaintiff does not have the benefit of G. L. (Ter. Ed.) c. 231, § 85, and must prove
At the arguments before us it was agreed that if the count for consequential damages should have been submitted to the jury, then judgment is to be entered for the plaintiff Daniel W. Hinckley in the sum of $553.50.
Defendant’s exceptions overruled.
Exceptions of plaintiff Daniel W. Hinckley sustained and judgment is to he entered on the third count of the declaration in the sum of $558.50.
It is admitted that at the time of the accident the truck was being operated by a servant of the defendant in the course of his employment.
The distance between the Legion building and the “westerly railroad track” was one hundred feet.
One witness testified that the plaintiff was lying “fifteen to twenty feet out into the street”; another testified that the distance was about ten feet.
This appears in the following portion of the judge’s charge: “ Mr. Foreman and gentlemen, I had prepared a special question for you to answer as to whether or not the left side of the trailer was the point of contact between the trailer and the bicycle but I understand from Mr. Walsh’s argument [plaintiff’s counsel! and you correct me if I am wrong because he said it two or three times, the contention of the plaintiff is that the rear end of the truck swerved around and struck the bicycle.” Counsel for the plaintiff stated, “That is my contention based on the evidence.”