310 Mass. 289 | Mass. | 1941
These two actions of tort, tried together, are brought by the administrator of the estate of James T. Shockett to recover damages for the latter’s death and conscious suffering resulting from the collision, at an intersection of public ways in the town of Framingham, of an automobile operated by the intestate and a truck owned by the defendant Akeson and operated by the defendant McDevitt, who at the time was acting within the scope of
1. The only contention of the defendants as to the first trial is that the plaintiff’s intestate was contributorily negligent as matter of law.
The jury could have found that on a July afternoon the intestate was operating a coach automobile at a speed of about twenty miles an hour in a westerly direction on the right hand side of Lawrence Street, which crosses Grant Street at right angles. . The weather was fair and the roads were dry. When the automobile was about twenty or twenty-five feet away from the intersection, it slowed down, and, as it entered the intersection, its speed was about twelve miles an hour. The width of the intersection in the direction the automobile was travelling was thirty-eight feet. When the automobile was about one third of the way into the intersection, the intestate’s companion felt the application of the brakes, and, at that time, she saw the truck, driven by the defendant McDevitt, approaching on her left, that is, from the south, in the center of Grant Street and just about entering into the “intersecting line.” The truck was travelling at about thirty to thirty-five miles an hour, and went twenty to twenty-five feet before the collision occurred at a point about three or four feet beyond the center line of Grant Street. The width of the intersection in the direction in which the truck was proceeding was thirty-five feet five inches. The automobile travelled about eight or ten feet after the application of
Where a collision occurs between automobiles at an intersection of ways, the question whether there has been negligence on the part of either or both of the operators is generally one of fact. Brightman v. Blanchette, 307 Mass. 584, 586. From the permissible findings, we are of opinion that the case at bar comes within the general rule and that it was a question of fact for the jury to determine whether the intestate was negligent. It could have been found that the automobile had entered the intersection before the truck. Accordingly, under G. L. (Ter. Ed.) c. 89, § 8, the automobile had the right of way, although this did not absolve the intestate from the obligation of exercising reasonable care to avoid injury to other travellers upon the way. Avery v. R. E. Guerin Trucking Co. Inc. 304 Mass. 500, 505. The intestate, to a reasonable extent, could rely upon the expectation that the truck operator would observe the law and that he would exercise reasonable care. The only evidence as to what the intestate did came from the other occupant of the automobile, who testified as to the slowing down “caused by . . . [the intestate] taking his foot off the accelerator,” that she felt the application of the brakes, and that just as the truck was about entering the intersecting line, the intestate turned his automobile “sort of to the right.” The jury could have found, from the testimony of the track operator, that when he reached the intersection, he slowed down and almost came to a complete stop. It is true that he testified that at that
2. The defendants ask this court to rule, as matter of law, that their motions for a new trial after verdicts on the death counts at the second trial should have been granted. The damages in such cases are to be assessed with reference to the degree of culpability of the wrongdoer, G. L. (Ter. Ed.) c. 229, § 5, subject to limits as to the amount of recovery therein provided. The general rule has been stated repeatedly that the disposition of a motion to set aside a verdict for recognized causes rests in sound judicial discretion. Just as the nature and extent of a plaintiff’s injuries are peculiarly questions of fact for a jury, so is the degree of culpability of a wrongdoer. We cannot say, from an examination of the record in the cases at bar, that “no conscientious judge, acting intelligently, could honestly” have acted upon the motions as did the judge in the cases at bar. Kinnear v. General Mills, Inc. 308 Mass. 344, 348349.
It follows that the exceptions in each case are overruled.
So ordered.