350 Mass. 376 | Mass. | 1966
These are actions of tort for the death of the plaintiff’s intestate allegedly resulting from the negligent operation of the defendants’ motor vehicles. The cases were tried together before a jury in the Superior Court. Upon conclusion of the evidence, the trial judge allowed motions by the defendants for a directed verdict to which the plaintiff excepted.
We summarize the evidence most favorable to the plaintiff. The defendant Marraffa was driving a truck eighteen feet in length. He waited in a crossover to move into the line of westbound traffic. The crossover was an opening of nearly sixty-nine feet in the sixteen foot wide grass island which divided a four lane highway. Marraffa “had known
The plaintiff contends that Burchstead was proceeding at an excessive speed and could have avoided the accident had he been driving “more slowly or more alertly.” But there is nothing in the record to show that had Burchstead been traveling at twenty-five miles an hour he could have seen, in time to avert the collision, that Lindgren was going to come straight through the crossover. See Rizzittelli v. Vestine, 246 Mass. 391, 392; Lynch v. Krancer, 302 Mass. 593, 595; Dunsmoor v. Cowdrey, 316 Mass. 516, 519; Luvera v. DeCaro, 317 Mass. 222, 224; Falvey v. Hamelburg, 347 Mass. 430, 433. “Negligence ... is without legal consequence unless it is a contributing cause of the injury.” Baggs v. Hirschfield, 293 Mass. 1, 3. Falvey v. Hamelburg, supra, at p. 435. There was no error in directing verdicts for Burchstead and his employer, Frank W. Edmands, Inc.
Marraffa and Berke Moore also contend that Lindgren was contributorily negligent as a matter of law. Only in rare cases can it be ruled as a matter of law that the burden of proving contributory negligence can be sustained. Joyce v. New York, N. H. & H. R.R. 301 Mass. 361, 363. Summering v. Berger Realty, Inc. 344 Mass. 38, 42. “ [W]here on all the facts, more than one inference rationally may be drawn, it is a question of fact and cannot be ruled as matter of law.” Mercier v. Union St. Ry. 230 Mass. 397, 404. Joyce v. New York, N. H. & H. R.R., supra. On the facts in the instant cases, the jury could infer that there was no contributory negligence on the part of Lindgren, and that he lost control of the car as a result of an attempt to avoid colliding with Marraffa’s truck. On the evidence the jury could find that Marraffa’s negligence was the proximate cause of the accident. See Stamas v. Fanning, 345 Mass. 73, 77.
In the case against Burchstead and Frank W. Edmands, Inc. the exceptions are overruled. In the case against Mar-raffa and Berke Moore Company, Inc. the exceptions are sustained.
So ordered.