This is an action of tort in which the plaintiff seeks to recover for damage caused to his motor truck at the corner of North Beacon Street and Brooks Street, in Boston. At the close of the evidence the defendant filed a motion for a directed verdict which was denied, and the defendant excepted. The trial judge submitted the follow
The record recites that at the place of the accident North Beacon Street runs east and west and is intersected, but not crossed, by Brooks Street from the south at an angle of about eighty-five degrees, forming a triangular corner on the southerly side of North Beacon Street; and the opposite side of Brooks Street is curved where it enters North Beacon Street. At the time of the accident the latter street was thirty-eight feet wide and Brooks Street was twenty-two feet wide. There was nothing at the corners to obstruct the view of a traveller on either street. There was a signal light in the center of the entrance to Brooks Street about three and one half or four feet high, the base of which was three feet wide and about one foot high. The plaintiff’s truck weighed five tons, and the load upon it weighed seven and one half tons.
The driver of the truck testified as follows: Before the accident he had been travelling on the right side of the road from the direction of Watertown. There was a line of cars coming in the opposite direction from Boston, and when his truck was about twenty feet from the signal light and he was travelling at a rate of twenty to twenty-five miles an hour the defendant’s automobile pulled to the left out of the westbound line of traffic at a point eleven feet before it reached the intersection of the streets and stopped about seven feet from the signal light and in front of the truck. There was not room enough for the truck to pass between the automobile and the signal light. When the automobile swung to the left it was about twenty to twenty-five feet from the signal light. The driver of the truck stated: “When I saw my passage was blocked and I knew I didn’t have room enough to stop with my brakes, I swung sharp to the right to avoid running head-on into him. When I did I tried to right my truck and the left rear wheel struck the base of this silent policeman here and I swung sharp
The defendant’s testimony was, in substance, that on the day of the accident he came up North Beacon Street to turn into Brooks Street. As he approached the place where he intended to turn he saw two pleasure cars coming from Watertown. He stopped and these cars passed in front of him and between him and the signal light, and the truck came down and struck against the signal light with its left rear wheel and then suddenly crossed the road striking the curbstone and turned over. The truck was one hundred twenty-five feet from him when he first saw it and his automobile had stopped. There was nothing to prevent his going into Brooks Street after the pleasure cars had passed him, and at that time the truck was two hundred feet away.
As the testimony of the driver of the truck and that of the defendant as to what occurred at the time of the accident were conflicting in essential particulars, a verdict could not properly have been directed for the defendant. The questions of negligence of the defendant and due care on the part of the driver of the truck were properly submitted to the jury, both of which questions were decided adversely to the defendant.
It is obvious that both parties violated a provision of the
The plaintiff acted in violation of G. L. c. 85, § 31, which reads in part as follows: ". . . no motor truck which with its load weighs more than four tons shall be operated upon any 'public way at a speed greater than fifteen miles an hour; and no vehicle which with its load weighs more than four tons shall travel upon any such way at a speed greater than four miles an hour when equipped with metallic tires, nor greater than twelve miles an hour when equipped with tires of rubber or other similar substance.”
The jury could warrantably find upon the evidence offered by the plaintiff that the defendant, without giving any warning signal, suddenly turned out of line into the path of the truck when it was about twenty feet away from it and then stopped within seven feet of the signal light at a place where a head-on collision between the truck and the defendant’s automobile would have been unavoidable if the driver of the truck had not turned quickly to his right. Upon this testimony the jury properly could have found that the defendant was negligent. DiRienzo v. Goldfarb, 257 Mass. 272, 281. Clay v. Pope & Cottle Co. 273 Mass. 40. Ordinarily when a collision occurs between travellers upon a public way the issues of due care on the part of the plaintiff-and negligence of the defendant are for the jury. White v. Calcutt, 269 Mass. 252, 255. The un
The specific finding of the jury that no act of the plaintiff or the driver of the truck contributed to the injury was not without evidence to support it. The jury might reasonably have found, as the driver of the truck in substance testified, that by quickly turning to the right the defendant's automobile was not struck and thereby a more serious accident was avoided. No exception was saved to the charge which is not before us. It is to be assumed that the instructions were adequate and correct. The cases cited by . the defendant are not applicable to the facts in the present case.
Exceptions overruled.