300 Mass. 382 | Mass. | 1938
These are two actions of tort which were tried together to a jury. The cases are consolidated in a single bill of exceptions which is stated to contain all the evidence material to the issues raised. The first case is for the death of Delia Leveillee, a count for conscious suffering having been waived. The second case is brought by the owner to recover for damage to his automobile, in which the deceased was riding. The defendant in each case seasonably presented a motion for a directed verdict, both of which were denied subject to the defendant’s exceptions. The jury returned a verdict for the plaintiff in each case. The accident occurred in Worcester.
Upon evidence most favorable to the plaintiffs, the jury could have found the following facts. On Friday, December 29, 1933, the defendant was operating his truck in a westerly direction on the main highway between Boston and Worcester. About five o’clock in the afternoon, as he was crossing the Lake Bridge over Lake Quinsigamond between Shrewsbury and Worcester, the bridge being a part of the main highway, his truck became disabled by reason of a broken axle. The defendant left his truck at the place on the bridge where it became disabled, and it remained there without lights of any kind until sometime after the accident, which occurred at about one thirty o’clock on Sunday morning, December 31. On Friday evening the defendant removed the load of meat from the truck and made some desultory but ineffectual efforts to have the truck removed from the bridge. On Saturday evening at about eleven o’clock, he went to the truck for the purpose of installing a new axle but gave up the attempt because of the cold, and left the truck in the same position in which it had been since Friday, and without any lights, although the lights were "working and there was nothing the matter with them.”
The only evidence in the record which relates in any way to the conduct of the deceased came from Adams, one of the occupants of the automobile, who testified that he was talking with her; that no one in the automobile at any time prior to the accident made any remonstrance to Lamotte as to the speed or manner in which the automobile was being-operated; that he did not hear the deceased make any remonstrance and did not know that she did.
A question of evidence is presented by the defendant’s exception to the admission in evidence of a copy of the traffic rules of the city of Worcester, certified to by the city clerk, which provided that there shall be no parking at any time on the Lake Bridge at the location where the accident occurred. As the defendant contends, there was no evidence introduced as to what constitutes parking within the meaning of the rule. Relying upon this fact and the absence of
The defendant admitted that the lights on his truck were not lighted at the time of the accident. This condition of the truck was a violation of our statutes, G. L. (Ter. Ed.) c. 85, § 15, and c. 90, § 7, as amended, and such violation is evidence of negligence, as was the violation of the ordinance, if so found by the jury. Lane v. Atlantic Works, 111 Mass. 136, 137, 140. Milbury v. Turner Centre System, 274 Mass. 358, 361, and cases cited. Baggs v. Hirschfield, 293 Mass. 1, 4. But the defendant contends that these violations were merely conditions and not causes of the accident and that the judge should have so ruled.
Such evidence does not make out actionable negligence unless the violation or violations can be shown to have been actually a proximate cause contributing to the injury suffered. Newcomb v. Boston Protective Department, 146 Mass. 596. Milbury v. Turner Centre System, 274 Mass. 358, 361. “It has long been settled that where a vehicle is rightfully upon a public way, but is for the time being in a position thereon which is in violation of some ordinance or binding regulation, its presence in the forbidden spot is not commonly as matter of law a proximate cause of a collision. It may be only a circumstance and not a cause, and the question is generally one of fact. Newcomb v. Boston Protective Department, 146 Mass. 596, 604. Falk v. Finkelman, 268 Mass. 524. Wall v. King, 280 Mass. 577, and cases cited. Violation of law is regarded as a cause of
The defendant argues that the deceased was not in the exercise of due care, as matter of law. We do not think it could have been so ruled. Contributory negligence, if any, of the deceased was an affirmative defence and the burden of proving it rested upon the defendant. G. L. (Ter. Ed.) c. 231, § 85. Horneman v. Brown, 286 Mass. 65. All the facts bearing on the due care of the deceased were not presented by the evidence. Mulroy v. Marinakis, 271 Mass. 421, 423. As was said in King v. Weitzman, 267 Mass. 447, 449, “All the facts concerning the injury are not shown beyond peradventure. The record is silent as to the observation by the plaintiff's intestate.” Death, it may be said, has prevented us from knowing what the deceased observed. See Healey v. Boston Elevated Railway, 235 Mass. 150, 152; Linnane v. Millman, 261 Mass. 491, 494. The cases are distinguishable from Thorp v.
The plaintiff administrators are entitled to recover for negligence of the defendant even though negligence of Lamotte, as to which, in the circumstances, we are not required to express an opinion, may also have contributed to the injury, if the deceased was not guilty of contributory negligence. Ouillette v. Sheerin, 297 Mass. 536, 539. It follows that there was no error in the first case and that the verdict for the plaintiffs cannot be disturbed.
In the second case, the defendant has presented no argument touching any questions except those relating to the admissibility in evidence of the traffic rule, the negligence of the defendant, and whether any such negligence was a cause or condition. We have already disposed of these questions. The jury could have found that the plaintiff Lamotte was the owner of the automobile involved, that he had lent it to Lamotte for the latter’s own purposes, and that he was not present at the time of the injury. This warranted a finding that Lamotte was a bailee of the automobile and that in operating it he was not acting as the plaintiff’s agent. The plaintiff, in these circumstances, is entitled to recover for damage to his automobile caused by the negligence of the defendant, even though the operator of the plaintiff’s automobile may also have contributed negligently to that damage. Gibbons v. Denoncourt, 297 Mass. 448, 459.
Exceptions overruled.