Fraser v. Flanders , 248 Mass. 62 ( 1924 )

Braley, J.

These actions are in tort for personal injuries alleged to have been caused by the negligence of the respective defendants, and, having been tried together, the verdict in the first case was for the plaintiff, and in the second case for the defendant.

At the close of the evidence in the first case the defendant asked for the following rulings:

“1. On all the evidence the plaintiff is not entitled to recover from the defendant Flanders.

“ 2. On all the evidence the defendant Flanders had the right of way over the defendant Dunn and exercised it, and the law providing for precedence over the other at the intersection of a way has no application in this case.

“3. On all the evidence the plaintiff Fraser is not entitled to recover from the defendant Flanders, if the jury find that the Flanders car had passed out of the path of the Dunn car before the Dunn car reached the intersection of the ways of the two cars.

“4. On all the evidence the jury must find for the defendant Flanders, there being no evidence from which the jury could find that she operated the car in a negligent manner.

“ 5. On all the evidence the jury must find for the defendant Flanders, there being no evidence that the collision between the Flanders and Dunn cars, which was subsequent to the contact between the Dunn car and the plaintiff Fraser, had anything to do with or contributed to the accident to the plaintiff Fraser.

“ 6. On all the evidence the jury must find for the defendant Flanders, if the jury find that the defendant Dunn was operating her car approaching the intersection of the two streets at an excessive rate of speed.”

The defendant excepted to the refusal of the judge to grant the requests, and to such portions of the instructions as were inconsistent with them.

The plaintiff, a pedestrian, whose due care was for the jury under G. L. c. 231, § 85, was crossing Newbury Street along the easterly side of Exeter Street going in a southerly direction, which were intersecting highways in the city of Boston, when, as the jury could find, he was struck by an automobile and severely injured. The jury also would have been warranted in finding, that shortly before the accident, the automobile driven by the defendant Flanders, moving northerly along Exeter street, and the Dunn automobile, moving westerly along Newbury Street, were approaching at right angles. It appeared in the evidence of Mrs. Flanders, that she observed the Dunn car at a distance of about sixty-five feet from the place where the plaintiff was injured, and about sixty feet distant from the corner of Exeter and Newbury streets, while Mrs. Dunn testified that she saw the Flanders car, just at the time they were equally distant from the corner. It could be found that the cars were moving at about equal speed, and, in view of these conditions, the jury could say that in the exercise of ordinary prudence- the respective drivers ought to have foreseen, that if the speed of either car was not slackened or its direction changed, the cars must ultimately come into collision. If the jury came to this conclusion, then Mrs. Dunn, as the judge properly instructed them, could rightly assume that Mrs. Flanders in operating her car would observe the provisions of G. L. c. 89, § 8, and c. 90, § 1, and grant the right of way at the point of intersection to the Dunn car which was approaching on her right. See McCarthy v. Beckwith, 246 Mass. 409.

The parties, travellers on a public way, were bound to exercise reasonable care to avoid injury to each other in their respective use of the street. Hennessey v. Taylor, 189 Mass. 583.

The plaintiff was not bound to point out the exact way in which the accident occurred, nor to exclude the possibility that it might have happened in some other manner than that which he claimed. McNicholas v. New England Telephone & Telegraph Co. 196 Mass. 138, 141. It could be found that he had safely passed in front of the Dunn car, and that just before the collision, Mrs. Dunn had applied the brakes. But as she did so, the rear end of the car began to slip from side to side, the back of the car turned at right angles to Newbury Street, and swerved around sufficiently to strike the plaintiff, who was found after the accident about six feet from the rear of the car. The question also was for the jury whether the Flanders car had come in contact with the Dunn car, causing the Dunn car to move backwards, before the plaintiff had reached the southerly side of Newbury Street.

It is true the circumstances were unusual. But it was said by Rugg, J., in Dulligan v. Barber Asphalt Paving Co. 201 Mass. 227, 231, citing a number of our cases, “ The particular manifestation of the result of careless conditions is not infrequently quite out of the usual experience, but if the conditions possess elements of negligence, the person responsible for them may also be held responsible for the result.” While the train of events which brought - about the result was the active efficient cause of the plaintiff’s injuries, the primary cause may be the proximate cause, although it may have operated through successive instruments. Lynn Gas & Electric Co. v. Meriden Fire Ins. Co. 158 Mass. 570, 575. The question of the defendant’s negligence therefore was a question of fact.

It cannot be held as matter of law, that the jury on all the evidence would not be justified in finding, that the accident would not have happened if Mrs. Flanders had exercised ordinary care, and had obeyed the statute. Finnegan v. Winslow Skate Manuf. Co. 189 Mass. 580. Hanley v. Boston Elevated Railway, 201 Mass. 55. The requests in so far as not given were denied rightly, and the instructions were full, clear and accurate.

In the second case it is contended that the defendant is liable as a joint tortfeasor. Doubtless, where two or more wrongdoers negligently and concurrently contribute to the personal injury of another, they may be found jointly and severally responsible. Feneff v. Boston & Maine Railroad, 196 Mass. 575, 581. The plaintiff’s seventh and thirteenth requests, however, which asked for rulings in accordance with this general principle, while refused in terms, were amply covered by the instructions, and no ground for reversal is shown.

The plaintiff called Frances Flanders, a daughter of Mrs. Flanders who was riding with her at the time of the collision, who,, after narrating what she had observed, was asked, if she had not made statements inconsistent with her evidence, coupled with an offer of proof showing such statements. The exclusion of the question presents no error of law. Cobb, Bates & Yerxa Co. v. Hills, 208 Mass. 270, 272. Old Colony Trust Co. v. Wallace, 212 Mass. 335. Aldrich v. Aldrich, 215 Mass. 164, 168, 169.

The exceptions to the denial of the motion for a new trial are without merit. Lopes v. Connolly, 210 Mass. 487, 495, 496.

The result is, that the entry in the first case must be, judgment for the plaintiff on the verdict, and in the second case the exceptions are overruled.

So ordered.