Lambert v. Eastern Massachusetts Street Railway Co.

Crosby, J. These are two actions of tort: the first, to recover for personal injuries received by the plaintiff on July 11, 1919, in consequence of being struck by one of the defendant’s cars after the automobile in which she was riding had upset upon the defendant’s car tracks; and the second, by her husband, who was operating the automobile at the time of the accident, to recover for medical and nursing expenses incurred by him in the treatment of his wife on account of the injuries sustained by her, and for damages to his automobile caused by being struck by the car. The accident occurred on Osgood Street, a public way in North Andover. The street runs in an easterly and westerly direction, and at the place of the accident had a macadam or tarvia surface on each side of which for a few feet was loose gravel. The defendant maintained a single track on the extreme northerly side of the street beyond the edge of the tarvia surface. On the day of the accident the plaintiffs were travelling on the street in an easterly direction in an automobile driven by Mr. Lambert, his wife sitting on the seat beside him; when they reached a point nearly opposite a lane described in the record the automobile suddenly skidded to the left, partly across the street railway track, and tipped over; while in that position a car of the defendant travelling in a westerly direction struck the automobile and Mrs. Lambert. At the close of the evidence the plaintiffs requested the presiding judge to give six instructions. The fifth was given in substance, the second and sixth are waived, thus leaving for consideration the first, third and fourth. — 499 — The first request was that “The mere skidding of the car was not an occurrence of such uncommon or unusual character that unexplained the jury could say it furnished evidence of the plaintiff’s negligence.” The court refused so to instruct the jury, but did instruct them that “The mere skidding of his automobile, unexplained, is not necessarily evidence of negligence on his part.” The request was a correct statement of the law pertinent to the issue of the conduct of the driver of the automobile, and should have been given; as modified by the court, it was not in substance nor effect what was asked for and to which the plaintiffs were entitled. The mere fact that the automobile skidded was not evidence of negligence; this court has so held in several cases. Williams v. Holbrook, 216 Mass. 239, 242. Loftus v. Pelletier, 223 Mass. 63, 65. Kelleher v. Newburyport, 227 Mass. 462, 464. If there was evidence to show that the automobile skidded by reason of negligence of the driver it could have been found that such negligence caused or contributed to the accident, but such evidence did not make the request inapplicable; the request was based on the assumption that skidding of the automobile was unexplained and unaccounted for. The instruction given that the skidding of the automobile was not necessarily evidence of negligence did not protect the rights of the plaintiffs, as the jury might have found it to be evidence of negligence, although wholly unexplained. As it did not accurately inform the jury upon an important issue, and as the instruction asked for was pertinent to a correct determination of that issue, the exception to the refusal to give it must be sustained. McGrath v. Wehrle, 233 Mass. 456. The third request that “There is no evidence of contributory negligence on the part of Louisa M. Lambert” was properly refused. It is plain that she could not recover if she was guilty of contributory negligence. If the jury found that in the exercise of common prudence she ought to have given warning to her husband of carelessness on his part, which she observed or ought to have observed in the exercise of due care for her own safety, and that she ought to have warned him that he was driving at too great a rate of speed in view of the condition of the surface of the street, or, that in the exercise of reasonable care she should have seen the approaching car and directed his atten — 500 — tian to it and that she failed to do so, she would not be entitled to recover. Nor could she recover if she negligently abandoned the exercise of her own faculties and trusted entirely to the care and caution of her husband, and his negligence caused or contributed to the accident. The instructions given to the jury on this branch of the case were full, clear and accurate. Shultz v. Old Colony Street Railway, 193 Mass. 309, 323. Miller v. Boston & Northern Street Railway, 197 Mass. 535. The plaintiffs’ fourth request is “There is no evidence that the speed of the automobile before it skidded was such as to establish negligence on the part of Clarence E. Lambert.” This request properly could not have been given. The uncontradicted evidence was that the automobile was being operated at a speed of twelve miles an hour just before the accident. The jury could have found that, owing to the wet and slippery condition of the tarvia surface of the street, the speed was unreasonable and improper; such a finding would have been evidence of negligence of the driver. As the plaintiffs’ first request should have been given, the entry must be Exceptions sustained.