289 Mass. 299 | Mass. | 1935
The plaintiff has brought this action to recover for personal injuries received by him and for damage to his automobile as the result of a collision with a vehicle owned by the defendants and operated by their employee. The case was heard in the Superior Court by a judge sitting without a jury. He found for the plaintiff and the case is here on the defendants’ exceptions to the judge’s refusal to rule that on all the evidence the plaintiff was not entitled to recover and that as matter of law the plaintiff was guilty of contributory negligence.
The collision occurred at night on a portion of the highway between Worcester and Shrewsbury which was used only by vehicles bound east, that being the direction in which the vehicles here involved were at the time travelling. The testimony as to many material facts was conflicting but after the finding made by the trial judge we necessarily consider only the version most favorable to the plaintiff.
The collision occurred when the plaintiff in his sedan was passing the vehicle of the defendants at its left. That vehicle consisted of an automobile truck with a trailer attached, its total length being about forty-two feet and its width about seven feet, ten inches.' When the plaintiff started to pass, the defendants’ vehicle was in the middle of the three lanes into which the roadway was divided by dark stripes on its surface, and the plaintiff’s automobile was proceeding in the left or inner lane. When the plaintiff’s automobile reached a point nearly opposite the cab of the truck the driver of that vehicle turned it to the left and onto the inner lane with the result that the two vehicles collided. The road was dry and straight and the vicinity was well lighted. There were no vehicles ahead of the truck and no moving vehicles at its right. While the lane at the right of the truck was partially
The evidence as to the plaintiff's conduct did not compel the judge to find that the plaintiff was negligent. When he started to pass the defendants’ long vehicle the inner lane in which he travelled was unobstructed. He gave ample notice with his horn that he was in the act of passing and kept his automobile at all times within a few inches of the curb at his left. His speed was not excessive. It could not have been ruled as matter of law under the circumstances appearing that he should have anticipated that the truck driver without cause would turn onto the inner lane. As soon as the turn was made he promptly endeavored to avert a collision. It could not properly have been ruled that the defendants had sustained the burden of proving that negligence of the plaintiff contributed to cause the collision.
Exceptions overruled.