333 Mass. 41 | Mass. | 1955
This is an action of tort to recover for personal injuries sustained by the plaintiffs by reason of the alleged negligence of the defendant. The answer was a general denial and an allegation of contributory negligence. There were verdicts for the plaintiffs. The case comes here upon the exception of the defendant to the denial of its motion for directed verdicts.
The defendant contends that the motion should have been granted on the ground (a) that the evidence did not warrant a finding of negligence on the part of the defendant or (b) that the plaintiffs were guilty of contributory negligence. There was no error in the denial of the motion.
We are of opinion that the situation in the case at bar is largely controlled by what this court recently said in Turcotte v. DeWitt, 332 Mass. 160, 162, “The judge did not err in denying the defendants’ motions for directed verdicts. True, there was evidence which would have warranted a finding that there was no negligence on the part of the operator of the van or that the deceased was guilty of contributory negligence, but the jury were not obliged to believe it. On the evidence most favorable to the plaintiff it could have been found that the van collided with the . . . automobile on the westerly lane, which would be the deceased’s right hand lane. If the jury believed that the accident occurred at this point in the road they could have found negligence on the part of the operator of the van. The question was one of fact for the jury to decide.” See Howes v. Kelman, 326 Mass. 696, 697.
“Evidence of a rear end collision without evidence of the circumstances under which it happens is not proof of the negligence of the operator of either vehicle, and the rule of res ipsa loquitur does not apply, but slight evidence of the circumstances 'may place the fault.’ Jennings v. Bragdon, 289 Mass. 595, 597.” Buda v. Foley, 302 Mass. 411, 412-413. Compare Warren v. Howe, 332 Mass. 213, 214. In the case at bar there was more than slight evidence to “place the fault” on the operator of the bus.
The case of Hladick v. Williams, 292 Mass. 470, involved a rear end collision under circumstances much similar to those in the case at bar. At pages 472-473, the court said, “Upon the evidence the trial judge could have found that . . . the defendant’s automobile was partly over the line of
We are of opinion that it could not have been ruled as matter of law that Mrs. Carter was guilty of contributory negligence. She was a passenger on the front seat of the automobile, and that she was watching out for her safety is evidenced by her exclamation of “Oh, Margaret” when the bus stopped. Bessey v. Salemme, 302 Mass. 188, 210.
Exceptions overruled.
See now G. L. (Ter. Ed.) c. 90, § I4B, inserted by St. 1951, c. 649, effective November 27, 1951. This statute was amended by St. 1952, c. 321, by adding a penalty clause.