Keyes v. Checker Taxi Co. ( 1931 )

Crosby, J.

These are actions of tort. The first is

brought to recover for personal injuries arising out of a collision between an automobile in which the plaintiff was riding and a taxicab operated by a servant of the defendant; the second action, brought by the husband of the plaintiff in the first action, is for the recovery of consequential damages. The jury found for the plaintiffs and the cases are here on the defendant’s exceptions to the refusal of the trial judge to direct a verdict for the defendant in each case, to the refusal to give a certain instruction and to portions of the charge.

The collision occurred in Boston about eleven o’clock in the evening of September 7, 1927. The plaintiff in the first action, who will hereafter be referred to as the plaintiff, was a guest in an automobile operated by one Charles H. Cunningham, and was seated on the right side of the rear seat. There was testimony from which it could have been found that the Cunningham automobile was proceeding along the right hand side of Chauncy Street toward Essex Street, the driver intending to cross Essex Street and enter Harrison Avenue, which leads off Essex Street on the other side thereof and somewhat to the right of Chauncy Street. Upon approaching Essex Street, the operator looked to the right and to the left, saw no automobile coming from .the right on Essex Street, sounded his horn and started to cross Essex Street at a speed not in excess of ten miles an hour. When entering Harrison Avenue he saw lights from a motor .vehicle coming from the right about twenty or thirty feet away, and when his automobile was almost into Harrison Avenue, the rear being about two feet out on Essex Street, it was struck at the right rear wheel. After the accident the Cunningham automobile was on the left side of Harrison Avenue and the taxicab was at the right of the automobile. The automobile in which the plaintiff was riding weighed about forty-two hundred pounds. As a result of the impact the wheels were lifted and the driving shaft was detached from the body of the automobile and “the bumper. . . . was knocked in towards the Harrison Avenue curb three or four feet.” Cunningham testified that in crossing Essex Street he drove to the left side of Harrison Avenue and did not turn to the right of the center of the intersection of Harrison Avenue and Essex Street. The plaintiff testified that when the automobile reached Essex Street she looked to the right and straight ahead and saw no approaching vehicle; that her view to the right was unobstructed; that just before the accident she saw lights which seemed to be partly from the side and front. There was further testimony that no vehicles were approaching from the right on Essex Street as the Cunningham automobile started to cross and that the view of its occupants to the right was unobstructed for three hundred or four hundred feet. All the testimony came from the plaintiff and witnesses called by her, the defendant offering no evidence.

It is plain that upon the entire evidence verdicts could not properly have been directed for the defendant. When a collision occurs under circumstances like those here present, at the corner of two streets or at an intersection of streets, the due care of the plaintiff and the negligence of the defendant are generally questions of fact for the jury. Salisbury v. Boston Elevated Railway, 239 Mass. 430. Daris v. Middlesex & Boston Street Railway, 241 Mass. 580. Hamel v. Sweatt, 256 Mass. 581. Bogert v. Corcoran, 260 Mass. 206, 209. Bagdazurian v. Nathanson, 269 Mass. 386. The jury could have inferred from the testimony that the taxicab was travelling along Essex Street at a high rate of speed, or that it turned into Essex Street from Harrison Avenue Extension (which joined Essex Street to the right ■of Chauncy Street) at a time when the Cunningham automobile was crossing Essex Street. The fact that the taxicab struck it in the rear when it had almost passed over Essex Street was a circumstance tending to show negligence of the defendant. Payson v. Checker Taxi Co. 262 Mass. 22, 26. The evidence required that the case be submitted to the jury upon the question of negligence of the defendant. Barnett v. Boston Elevated Railway, 244 Mass. 418. Stickel v. Cassasa, 268 Mass. 59. Austin v. Eastern Massachusetts Street Railway, 269 Mass. 420.

The defendant requested the judge to give the following instruction to the jury: “If the operator of the plaintiff’s automobile failed to keep to the right of the center of the intersection of Harrison Avenue in its junction with Essex Street in turning into Harrison Avenue, he thereby violated the ordinance with reference to making such left-hand turns.” The judge refused to give this instruction, and the defendant excepted. This refusal was not erroneous. The requested ruling related to a fragmentary portion of the evidence; it' was not a vital issue in the case and might properly be denied on this ground. McDonough v. Vozzela, 247 Mass. 552. Coates v. Bates, 265 Mass. 444. The plaintiff was not the operator of the automobile but was a guest sitting in the rear seat. There was no evidence from which it could be ruled as matter of law that she entrusted herself wholly to the care and caution of the operator without taking care for her own safety. The negligence of the operator, if there were any, could not be imputed to her. Fahy v. Director General of Railroads, 235 Mass. 510. McDonald v. Levenson, 238 Mass. 479. Lambert v. Eastern Massachusetts Street Railway, 240 Mass. 495, 500. Pendleton v. Boston Elevated Railway, 266 Mass. 214. See Rea v. Checker Taxi Co. 272 Mass. 510. She testified that she looked to the right and straight ahead as the automobile in which she was riding entered Essex Street and that she did not see the lights of the taxicab until “just before the crash.”

The defendant excepted to that portion of the judge’s charge relating to the law of the road. G. L. c. 89, § 8, as amended by St. 1926, c. 330, § 1. This exception cannot be sustained. The instructions were free from error. The explanation to the jury of the meaning of the words “point of intersection” found in the statute was in accordance with the interpretation of those words as laid down by this court. Fournier v. Zinn, 257 Mass. 575. Cunningham v. New England Transportation Co. 267 Mass. 238. Mahoney v. Boston Elevated Railway, 271 Mass. 274. See now St. 1929, c. 147.

As no error of law appears in the conduct of the trial the entry in each case must be '

Exceptions overruled.