312 Mass. 363 | Mass. | 1942
An auditor whose findings of fact are final has found that the plaintiff was travelling westerly along a public way in Lunenburg, at about 9:30 o’clock on a pleasant August evening in 1941, in an automobile owned by one Albert and operated by him along the right hand or northerly side of the highway, at a speed of twenty or twenty-five miles an hour, about three car lengths behind an automobile owned by one McMackin. The McMackin automobile had travelled at this distance ahead of the Albert automobile for several hundred feet and gradually came to a stop at the extreme right side of the way, with its right wheels resting about two feet onto the north shoulder of the road. Albert continued in the same course and at the same speed until he came within a car length of
It is unnecessary to decide whether we should construe the auditor’s report as showing that his ultimate findings were based upon all the evidence — as the plaintiff contends — so that his general findings, which do not appear to be inconsistent with his subsidiary findings, import a finding of all subsidiary findings essential to his general findings, Lewis v. Conrad & Co. Inc. 311 Mass. 541; or whether we should interpret the report as showing that his general findings rest solely upon the subsidiary findings — as the defendant contends — so that the correctness of his general findings may be tested and rejected if found to be
The auditor was undoubtedly right in finding that Albert was negligent in turning out from behind the McMackin automobile and only a car length in front of the Webster automobile. The plaintiff was not bound by the negligence of Albert. Bessey v. Salemme, 302 Mass. 188. But the resulting collision was not due solely to the negligence of Albert. The fact that a collision was inevitable in the circumstances when Albert turned to his left does not absolve the defendant from liability. The findings of the auditor show a continuous course of negligent conduct upon the part of the operator of the defendant’s automobile which finally culminated in the collision. To drive between twenty and twenty-five miles along the right center of a highway for nearly two hundred feet after knowing that an automobile had stopped on the left side of the road, without being able while travelling this distance to see anything in front of him, and then colliding with an automobile that he did not see until he collided with it, warrants no other conclusion than that such an operator was negligent. Alpert v. Ellis, 236 Mass. 404. Woodman v. Powers, 242 Mass. 219, 222. Hicks v. H. B. Church Truck Service Co. 259 Mass. 272, 276. Commonwealth v. Arone, 265 Mass. 128. Arnold v. Colbert, 273 Mass. 161. Durling v. Lamontain, 277 Mass. 517. Clark v. C. E. Fay Co. 281 Mass. 240. Texeira v. Sundquist, 288 Mass. 93, 94. Haines v. Chereskie, 301 Mass. 112. Lucier v. Norcross, 310 Mass. 213.
Order for judgment affirmed.