306 Mass. 318 | Mass. | 1940
The plaintiff’s intestate, forty-four years old, after suffering consciously, died in consequence of injuries
It could have been found that the collision occurred in Newton on Washington Street, which is thirty-one feet seven inches wide between the curbs. The defendant was travelling to the east and, at about the time of the collision, was passing an automobile proceeding in the same direction; he was also passing a twenty-ton trailer truck, travelling in the opposite direction, which was carrying a ten-ton load and was, in turn, passing an automobile parked on its right. This truck was about thirty-five feet long, eight feet wide in the rear, and ten feet six inches in height. Its rear consisted of a box with four sides and a roof and its rear end was closed with canvas. As they passed, the distance between the defendant’s automobile and the truck, from side to side, was about six inches.
The auditor found that the deceased, for some distance before the collision, with his left hand about five inches from the left side, had been “hanging on” to the rear of the truck, and that his right hand was on the handle bar of the bicycle; that he rode out to his left from behind the truck “directly into the path” of the defendant’s automobile; that he made an effort to turn his wheel to the right but struck the automobile just in front of its left headlight; that his bicycle rode up over the bumper, his body hurtling through the air, and that his head went through the left side of the windshield. He also found that the deceased’s vision ahead was blocked by the truck; that the left wheels of the defendant’s automobile were six inches north of a manhole that is seventeen inches south of the middle line of the street, and that, allowing for an
A witness testified that, as she was travelling in her automobile to the west, she observed ahead a large truck (which could have been found to have been the one already referred to), and that for five “blocks” there was no other automobile between it and her; that she noticed a man on a bicycle hanging on to the back of the truck with his left hand five or six inches from the left side, coasting along, with his right hand on the handle bar; that when last seen by her at a distance of about two hundred yards from the place of collision he was holding on to the back of the truck.
The defendant testified that he saw the deceased when the latter “swung out” from in back of the truck, and when he was about five or six feet away; that the deceased came toward him on an angle, diagonally, and came to the left of the center of the street. A witness who was riding with the defendant testified that the truck was pulled out to pass the parked automobile as they came abreast; that the defendant's automobile was “practically by the truck, a short distance to go, about five or six feet,” when the bicycle suddenly appeared from behind the truck; that the deceased was bent well over the handle bar, looking up; that when he first observed him, he was coming out at a slight angle; that as he was coming out “they saw him, and he saw them, at about the same time”; that the defendant immediately applied the brakes and the crash came “right then at the same instant”; that when he first saw the deceased come out from behind the truck he was about five or six feet, “no more,” from the defendant's automobile, and that, with reference to it, the bicycle was coming at a slight angle, almost directly at it.
The plaintiff introduced in evidence an interrogatory and
The plaintiff concedes that the traffic was heavy in both directions, and there was evidence that it was “travelling pretty close together.” There were brake marks on the surface of the street that went straight from east to west; and ' ‘ they ran from the rear of the defendant’s car where they started; . . . they ran right up to the rear wheels.”
The defendant admits “for the purpose of . . . [his] brief” that there was a “scintilla of evidence to submit to the jury on the issue of his negligence,” but contends that the auditor’s finding of contributory negligence on the part of the deceased was uncontrolled by other testimony, and also that the plaintiff was bound by the defendant’s answers to her interrogatories which, he contends, establish contributory negligence.
The binding force and effect of an auditor’s findings of fact, unshaken by other evidence, are settled, Cook v. Farm Service Stores, Inc. 301 Mass. 564, 566, and cases cited; Herbert v. Anbinder, 302 Mass. 396, 397, and an auditor’s finding that the plaintiff was contributorily negligent is not rebutted merely by the statutory presumption that the person injured was in the exercise of due care. G. L. (Ter. Ed.) c. 231, § 85; c. 221, § 56. Kneizys v. Stone, 297 Mass. 31, 33.
The plaintiff contends that, if the evidence at the trial
We think that it was error to deny the defendant’s motion for a directed verdict. The plaintiff contends that the
The auditor found that the defendant was not negligent, and, in this connection, that he was on his right hand side of the center of the street at the time of the impact. The plaintiff contends that it could have been found that the left side of the defendant’s automobile was over the center line of the street by a matter of inches, and she has presented figures as to distances and spaces, some of which do not appear in the record either directly or by inference, to substantiate this contention. See White v. Lewis, 305 Mass. 450, 453. But upon the view of the evidence most favorable to the plaintiff, and its permissible inferences, the conclusion is inescapable that the deceased rode out to his left “directly into the path” of the defendant’s automobile. If we assume that the automobile was over the center line of the street a matter of inches, and that the deceased had a right to rely to a reasonable extent upon the expectation that the defendant would observe the law of the road as he was passing the truck, nevertheless such reliance is unavailing where, as here, a difference of the matter of inches, as contended, in the position of the automobile, would not have saved the deceased. Tognazzi v. Milford & Uxbridge Street Railway, 201 Mass. 7, 9-10. Cohen v. Boston Elevated Railway, 202 Mass. 66, 68. Sheehan v. Boston & Northern Street Railway, 215 Mass. 463, 466. Will v. Boston Elevated Railway, 247 Mass. 250, 251. The plaintiff is not helped by the testimony of a witness,
There is nothing in the cases of Cohasset v. Moors, 204 Mass. 173, 179, 180, or Chandler v. Prince, 217 Mass. 451, 456, that is at variance with our ultimate conclusion.
The finding of the auditor that the deceased was contributorily negligent cannot be disturbed, and an examination of the entire record leads to the conclusion that the defendant’s motion should have been granted. Messenger v. Dennie, 137 Mass. 197; S. C. 141 Mass. 335. Mills v. Powers, 216 Mass. 36. Gibb v. Hardwick, 241 Mass. 546. Will v. Boston Elevated Railway, 247 Mass. 250. Stevens v. Boston Elevated Railway, 250 Mass. 288, 290. Gavin v. Jacobs, 259 Mass. 23. See Costa v. Slade, 281 Mass. 200; Baker v. Davis, 299 Mass. 345, 347.
It is unnecessary to consider in detail the force and effect of the defendant’s answers to some of the plaintiff’s interrogatories that were put in evidence; it is sufficient to say that they do not aid the plaintiff.
Exception sustained.
Judgment for the defendant.