Seymour v. Dunville

265 Mass. 78 | Mass. | 1928

Sanderson, J.

This is an action by the administrator of Leo J. Seymour for death and conscious suffering, resulting from a collision in the night between a truck, owned by the defendant and operated by his employee acting within the scope of his employment, and a Ford runabout owned and operated by the deceased. The verdict was for the plaintiff. The only exception argued is to the refusal of the judge to allow the defendant’s motion for a directed verdict.

At some time before the date of the accident, the seat of the runabout had been removed and a rear seat from a Hudson automobile had been bolted to the frame in its place, large enough, according to the testimony, to seat three adults of ordinary size. The runabout had no mud guards. Shortly before the accident the deceased was riding with two companions when a blowout occurred in the right front tire; they had no spare tire and the inner tube was beyond repair. The tire was stuffed with weeds, grass and paper until it was solid and then put back on the wheel. The automobile of the deceased was not equipped with demountable rims but the tires were attached directly to the wheels. There was testimony tending to prove that' after being thus repaired the tire was as firm as it would be if supported by air pressure, and that it did not come off before the collision. After the tire was put in place the three proceeded on their way, the deceased driving and sitting between the other two, the heavier of whom was on his left. They approached the truck on a one way street, following it about a hundred yards down a hill. As the deceased turned out to pass the truck one of his companions sounded a Klaxon horn to notify the driver of the truck of their approach. That driver testified that he heard the noise of the Ford motor but did not'hear a horn. In attempting to pass, the deceased drove along for about one hundred feet on the left of the truck at a speed of about seventeen miles per hour, with a clearance of two feet from the truck and two feet from the curb; when the radiators of the two vehicles were opposite each other the left front wheel of the truck suddenly swerved to the left hitting the right front wheel of the runabout and causing the injuries to the plaintiff from which, after conscious suffering, he died. In statements of the deceased admitted in evidence, he said, in substance, that the truck cut in as he was passing and ran him down.

The jury could have found that the driver of the truck knew of the approach of the automobile before the collision even if he did not hear the horn, and they could have found him careless either in turning the truck into the runabout or in not preventing it from so turning. The driver did not testify that any uneven condition of the street caused the truck to turn to the left. He denied that it turned and said that the Ford crashed into the left front wheel of the truck. The jury could have found that the right front tire with its unusual filling had'no causal connection with the accident.

The testimony offered by the plaintiff as to the cause of the accident made it also a question of fact whether the presence of three persons on the front seat, one of whom was on the owner’s left, interfered with his driving in such a way as to be a contributing cause of the accident. G. L. c. 90, § 13. Shapiro v. Union Street Railway, 247 Mass. 100, 104. The question whether the deceased was negligent in not allowing sufficient clearance between the runabout and truck was for the jury to decide. Screw Machine Products Corp. v. Union Light & Power Co. 262 Mass. 320.

Exceptions overruled.