278 Mass. 378 | Mass. | 1932
These actions of tort, for damages arising out of a collision between a motor bus and an automobile, were tried with other actions brought by the same plaintiffs against the Boston, Worcester and New York Transportation Company and John J. Ward, driver of the defendant’s bus; but at the close of the evidence it was agreed that only the four cases set forth above should be submitted to the jury.
The declaration in each case was in several counts. In those in the Isaacson and Haynes, administratrix, cases there were two counts for death alleging respectively neg
The bill of exceptions contains all the material evidence. The defendant concedes for the purposes of the bill that there was evidence that the defendant was negligent, and that John J. Ward, the driver of the bus, was in its employ and acting within the scope of his employment. The main ground relied upon in support of the motions for directed verdicts is that there was not sufficient evidence to warrant a finding of wilful, wanton or reckless misconduct on the part of the defendant. The evidence relating to the circum
.The accident occurred on Sunday, August 11, 1929, between 10:30 and 11 p.m. The Henry Ford Road is a part of the State highway about three miles in length, running easterly toward Boston and westerly toward Worcester. The roadway has three parallel divisions, or lanes, each ten feet wide, and a shoulder three feet wide on the outer or northerly and southerly lanes, making altogether thirty-six feet. The outer lanes are of gray concrete; the middle lane is of black macadam. The shoulders, also of black macadam, are a part of the travelled way. On the southerly side, outside the shoulder, for a distance of about eighteen feet from the road the land is level gravel. The road begins approximately two thirds of a mile easterly from the point where the accident occurred. The road here is almost straight but there is a long gradual curve "from the west. There was evidence that at a point slightly more than five hundred feet westerly from the place of the accident a person could see an object six feet high on the highway about, eight hundred fifty feet to the east. There were no street lights along the road, the night was dark, the roadway dry, and the defendant’s bus was travelling in an easterly direction.
There was evidence that the plaintiff Haynes and the three intestates were travelling west in a sedan, owned by the intestate Ducharme and at the time of the accident driven by the intestate Isaacson. They all lived in Worcester and were returning from Rockport, in this Commonwealth, where they had been with five other friends who were following substantially in the northerly lane in another automobile. Between the sedan and this automobile there was a motor vehicle driven by one Knight travelling in the outer part of the northerly lane approxi
John F, Cove, who was riding in the coach, testified that he saw the bus two hundred twenty-five or two hundred fifty feet away coming around a slight curve in the road about forty-five to fifty miles an hour; that the bus was in the center lane; that it was swaying and rocking and was very close to the northerly cement. Edward M. Cove, the driver, testified that he pulled over as far as he could go; that when the bus passed he had pulled onto the dirt outside of the northerly lane. One Crane, who also was riding in the coach, testified that he saw the bus about
Lichtenfels testified, in substance, that the bus was in the center lane and did not turn to the right or left and was going forty-five to fifty miles an hour; that the pressure of air as it passed forced in the side curtains of his car “with a very pronounced slapping noise”; that just before it passed his touring car was in the center of the north lane; that he pulled off to his right and the bus passed him very close, it was a matter of seconds after it passed him that he heard the crash; that as he looked back “it seemed that the entire roadway was a mass of flames and the machine that had been struck was in mid air and suspended over the north roadway just as if some giant force had picked it up and hurled it over and the car itself was a mass of flames.”
Knight testified that he was about one hundred twenty-five to one hundred fifty feet behind the sedan; that he saw the lights of the bus coming in his direction and apparently in the middle lane close to the northerly lane and headed directly at him; that the bus hit the left rear corner of his car, moving it about fifteen feet, and pushing “in the frame and running board and rear fender.”
One Flynn, a witness called by the plaintiffs, testified that he was riding in the automobile which was fully in the northerly lane and following Knight’s car; that he saw “the big hulk of the bus looming up and coming diagonally across the road toward . . . [them] . . . That the Studebaker [in which he was riding] turned left, increased its speed, and went diagonally across the road, and when in the middle lane its right front came in contact with the right rear of the bus.”
One Hare, called by the defendant, testified that he was riding in a touring car eastbound to Boston; that “The bus went by us before it got to the curve. We were driving
Ward, the driver of the bus, was called by the plaintiffs. He testified, in part, as follows: “On the previous trip from Boston to Worcester that day, I had an accident. I bumped into a car. There was a line of traffic moving and this car stopped and I couldn’t stop quick enough. I tried to put on the vacuum brake, as it is called, which I put on hard and notwithstanding the fact that I put it on hard, I went on up into the car ahead of me. When I got to Worcester, there was no inspection made of my brakes. I reported my brakes were in defective condition to Mr. Charlton, an official of the company, who inspected on the Worcester end division. He sent me back without any further repairs. There were no means of giving any repairs, so I had to take the bus. I did not exactly report to him that these brakes would not hold. I told him about the accident in White City. I knew that my brakes were not taking hold as they should, and I told him, in substance, that fact.” In describing the accident the witness testified, in part, as follows: “I rounded a slight curve. Traffic was very heavy coming toward Worcester. I noticed these cars, all had lights lit, and one, two, three lines coming towards me. I slowed down. The first car that was in the third lane swung over out of my way into the middle lane. Directly behind him was another which swung over to his left and my right, leaving me a space, my only choice to go through the two cars, and going through that small space, I collided with the Buick. At the time I struck the Buick, he was diagonally across the road, partly in the northerly lane and partly in the center lane. My bus was partly in the center lane and partly in the southerly lane .... At the time of the collision with the Buick, there was no car on my
There was evidence that parallel brake marks ninety feet long on the road led up to the rear wheels of the bus which had stopped almost wholly off the road on the northerly side. The “marks were entirely on the middle lane and there were none on the southerly cement lane . . . . This southerly mark . . . ran easterly very close to the southerly cement lane, straight for twenty feet and then across the macadam center lane on a flat curve across the northerly cement lane more abruptly.”
The question is whether upon the evidence most favorable to the plaintiffs the jury were warranted in finding that the operation of the bus in the circumstances constituted wilful, wanton or reckless misconduct. The alleged wrongdoer acts wantonly, wilfully or recklessly only when he inflicts the injury intentionally, or is so utterly indifferent to the rights of others that he acts as if such rights did not exist. The result is a wilful and not a negligent wrong. Wentzell v. Boston Elevated Railway, 230 Mass. 275, 277. Query v. Howe, 273 Mass. 92, 96. Sullivan v. Napolitano, 277 Mass. 341, 344, and cases cited. This court in many cases has pointed out that both ordinary and gross negligence differ in kind from wanton or reckless misconduct. Adamowicz v. Newburyport Gas & Electric Co. 238 Mass. 244, 246. Prondecka v. Turners Falls Power & Electric Co. 241 Mass. 100, 102. Farr v. Whitney, 260 Mass. 193, 197. It was said by the court speaking through Chief Justice Knowlton: “The difference in rules applicable to the two classes of cases results from the difference in the nature of the conduct of the wrongdoers in the two kinds of cases. In the first case the wrongdoer is guilty of nothing worse than carelessness. In the last he is guilty of a wilful,
The testimony of Ward, the driver of the bus, as to the cause of the accident in its important details corresponds with the testimony of witnesses who on that night were westbound. The brake marks on the roadway bear mute corroboration. ■ There was evidence that Ward immediately before the accident was violating three statutes respecting the operation of motor vehicles on highways.
(a) G. L. c. 90, § 7, as amended by St. 1921, cc. 189, 434, 483, St. 1922, c. 342, § 2, St. 1923, c. 335, St. 1928, c. 328, § 1, St. 1929, c. 43, reads in part as follows: “Every motor vehicle operated in or upon any way shall be provided with brakes adequate to control the movement of such vehicle and . . . such brakes shall at all times be maintained in good working order.” Ward testified that on the previous trip from Boston to Worcester, on the same day, he ran into another motor vehicle because of the defective condition of the brakes of the bus, and was sent back without any repairs; that on account of the condition of the brakes he started back fifteen minutes ahead of the regular time and drove more carefully than if his brakes had been in good working order. It could have been found that the defective brakes were causally related to the accident. Ward testified that if the sedan had been a foot farther to the west he would not have struck it; that when he applied his brakes it caused the bus to swerve to the left a little; that there was nothing to hold his right wheel from following around; that there was no equalization of the brakes on the rear wheels. Murphy v. New England Transportation Co. 273 Mass. 275, 277. See Logan v. Reardon, 274 Mass. 83, 86.
(b) G. L. c. 90, § 17, reads in part as follows: “No per
(c) G. L. c. 89, § 1, provides that “When persons traveling with vehicles meet on a way, each shall seasonably drive his vehicle to the right of the middle of the traveled part of such way, so that the vehicles may pass without interference.” Ward testified that “At the time of the collision with the Buick, there was no car on my right going in the same direction the bus was going”; “I knew the law of the road that when I meet a vehicle coming towards me I should turn to the right.” Nevertheless he did not change his direction. He at no time turned to his right. A witness testified that the bus “continued down the middle lane until twenty-five to' thirty feet from the Buick without changing its course an inch.” It is plain that the jury could have found that the defendant’s failure to observe the law of the road contributed to the accident. See Ware v. Saufiey, 194 Ky. 53, 55. If, as the defendant contends, an emergency existed, it could have been found that it did not arise until after the driver had turned to the left and that it was created by his own negligent act. One cannot shield himself behind an emergency created by his own unlawful act. Rundgren v. Boston & Northern Street Railway, 201 Mass. 156. Tuttle v. Connecticut Valley Street Railway, 239 Mass. 553. See also Carpenter v. Campbell Automobile Co. 159 Iowa, 52.
It is manifest from the foregoing violations of the statute that the driver of the bus could be found to have been
If the evidence most favorable to the plaintiffs was believed the jury could have found that there was a violation by the driver of the bus of a series of statutes manifestly intended to be observed for the safety of persons upon the highway, coupled with a complete indifference to, or such reckless disregard of, probable consequences as to be equivalent to a wilful or intentional wrong. The case falls within the authority of Aiken v. Holyoke Street Railway, 184 Mass. 269, Freeman v. United Fruit Co. 223 Mass. 300, 302, Commonwealth v. Arone, 265 Mass. 128, Leonard v. Conquest, 274 Mass. 347, and other cases in which the evidence was held sufficient to warrant a finding of wilful, wanton or reckless misconduct on the part of the defendant. This is not a case where the vision of the driver of the bus became suddenly confused, or he made an error of movement or judgment. See Austin v. Eastern Massachusetts Street Railway, 269 Mass. 420, 424, 425.
The defendant contends that the plaintiff Charles H. Haynes and the three intestates, as matter of law, were not in the exercise of due care. Where as here it could have been found that the defendant’s acts amounted to wilful, wanton or reckless misconduct, contributory negligence is not a defence. Cieplinski v. Severn, 269 Mass. 261, and cases cited at page 267.
The exceptions to the admission of certain questions asked on the cross-examination of a witness respecting the condition of the brakes are not argued and are treated as waived. Barnes v. Springfield, 268 Mass. 497, 504.
The question asked the witness Lichtenfels on cross-examination was excluded subject to the defendant’s exception. If it be assumed without so deciding that the expected answer had probative value, its exclusion falls within the rule that the scope of cross-examination is to a great extent within the discretion of the trial judge. Guinan
At the close of the evidence the defendant by written motion requested the judge to direct a verdict for the defendant in each case upon grounds therein specified. To the denial of each motion the defendant excepted. At the close of the evidence the defendant presented forty-five requests for rulings which were examined by the judge. After the charge, and a further charge upon certain questions, the judge read to the jury all but four of the requests; those numbered 39, 40, 42 and 45 were refused.
Request 39 was rightly refused because it could not have been ruled in the Ducharme case that if it was found that Ducharme took turns with Isaacson in driving the car the negligence of Isaacson would be attributed to the intestate. It could not have been ruled that they were engaged in a common enterprise. See Caron v. Lynn Sand & Stone Co. 270 Mass. 340, 346-347. The fact that two occupants take turns in driving a car does not necessarily make the operation of it a joint enterprise. Hollister v. Hines, 150 Minn. 185, 190. Request 40 was properly refused. If, as the jury found, the defendant was guilty of wilful or reckless misconduct, negligence of the driver of the Ducharme car would be immaterial. Cieplinski v. Severn, 269 Mass. 261, and cases cited at page 267.
Request 42 is as follows: “In the Ducharme case there is not sufficient evidence of an actual conscious suffering of the plaintiff’s intestate.” Upon this question a witness testified that with the help of another person he moved Ducharme a little way and tried to lift him, “but his head dropped back and when it hit against the macadam he gave a sharp intake of breath five times louder than normal through his mouth (witness demonstrating it) and his whole body quivered .... Witness knelt by him, called him by name. He did not answer. All he did was to shake his head. He put his hand on Ducharme’s chest and the body trembled and shook all over. His mouth seemed as
Request 45 relates to a certain portion of the evidence in the case of Charles H. Haynes. The judge was not required to deal with it specifically. The charge was full and accurate upon the issue presented by this request. No error is shown by the refusal to give it. Ayers v. Ratshesky, 213 Mass. 589, 593. Ferris v. Ray Taxi Service Co. 259 Mass. 401, 403.
It is contended that the judge erred in his treatment of the defendant’s objections to certain arguments of plaintiffs’ counsel to the jury. These arguments were dealt
We have considered all of the exceptions saved by the defendant and find no reversible error.
It results that the entry in each case must be
Exceptions overruled.