Commonwealth v. Mara

Sanderson, J. The defendant was convicted under a count charging him with operating a motor vehicle upon a public way so that the “lives and safety of the public” might be endangered. This count is in proper form to charge a violation of the statute (G. L. c. 90, § 24) which makes it a criminal offence to operate a motor vehicle upon any way so that the “lives or safety” of the public might be endangered. See Commonwealth v. Atkins, 136 Mass. 160, 161; Commonwealth v. Ahern, 228 Mass. 547, 548. See also the forms prescribed in G. L. c. 277, for setting up or promoting a lottery, neglect of wife or minor child, and keeping or maintaining a nuisance. The jury could have found that the defendant was operating an automobile at a speed of twenty to twenty-five miles an hour, going in a northerly direction on South Street, in Pittsfield, at about eleven o’clock at night; that two women and a boy about three years old came out of a side street to a stopping place for a street car, intending to take the car; that as they reached a point near the rail the street car was approaching and an automobile driven by the defendant was coming in the same direction. The automobile struck one of the women and the boy, causing the death of the boy and serious injury to the woman. The defendant moved for a directed verdict upon the ground that the Commonwealth had not proved that South Street was a public way. The trial judge instructed the jury, subject to the defendant’s exception, that it was for them to say, from what they observed on the view and from the other evidence in the case, whether South Street in Pittsfield is a public way. ■ The defendant admitted that if there was evidence, not including anything the jury saw or might have seen on the view, upon which the jury was entitled to find that the defendant was operating the automobile on a public way, then it was proper for the judge to deny the motion for a directed verdict. “Way” is defined in G. L. c. 90, § 1, as “any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park [209] commissioners or body having like powers.” The evidence tended to prove that the street was well lighted, over thirty-six feet in width between curbs with a surface of cement or concrete, and with crossroads leading from it. There were houses upon both sides, and a considerable amount of traffic in both directions. The street was referred to as the main road to Lenox, and the defendant testified that he had driven up and down South Street for eight years. Some of the witnesses spoke of it as a highway. The plan used as a chart showed the location of a hydrant and the tracks of the street railway company in the center of the street. Upon this evidence South Street appeared to be an important city street and there was nothing in the evidence to suggest that it was not a way within the meaning of the statute quoted. Curbings, concrete paving, electric lights and hydrants in a street are commonly the result of the expenditure of public money for the public use and convenience. Street railway tracks, apart from special authority, are located in public ways. G. L. c. 161, § 54. It would be highly improbable that the main road from Pittsfield to Lenox should be a private way. The jury had the right to infer from the testimony that the street was a way within the meaning of the statute. The case seems to be controlled in principle by Commonwealth v. Leone, 250 Mass. 512, 515, in which there was no evidence to show how St. Lawrence’s Square in Lawrence came to be established as a way, and this court held that there was no error in the denial of a motion for a directed verdict. In Jones v. Boston, 201 Mass. 267, 268, the way which was held not to be one “opened and dedicated to the public use” under R. L. c. 48, §§ 98, 99, although “it was of such appearance as to lead an ordinarily observant traveller to suppose it was a public highway and not a parkway,” was shown by the evidence to have been laid out as part of a public park by the park commissioners. There was no error in the part of the instructions which permitted the jury to consider in deciding this question what they observed on the view. See McMahon v. Lynn & Boston Railroad, 191 Mass. 295, 298; Commonwealth v. [210] Dascalakis, 246 Mass. 12, 29. The judge had previously stated to them that they could take into consideration as evidence what wás pointed out to them on the view. No question was raised at the trial as to the view or anything that was pointed out on it, and there was evidence that the condition of the street at the time of the trial was the same as at the time of the accident. The judge instructed the jury as to the nature of the crime charged in the second count in the words of this court in Commonwealth v. Pentz, 247 Mass. 500. In stating the distinction between reckless operation of an automobile and so operating that the lives and safety of the public might be endangered, he used certain illustrations which were to be considered by the jury only as illustrations. There is no valid ground for objecting to them. See Commonwealth v. Dzewiacin, 252 Mass. 126, 131. The defendant’s contention that some additional illustrations should have been used to show circumstances under which the defendant would be entitled to an acquittal, is not a ground for sustaining the exceptions. Under the charge the jury could convict if they found that the defendant, by the manner in which he operated his automobile, created a reasonable possibility of danger to the lives and safety of the public, and if he was by reason of the manner in which he operated it in whole or in part the cause of that danger. The fair meaning of the charge is that, unless the jury found that he so operated the automobile, it would be their duty to acquit. The exceptions to the illustrations given and to the failure to give other illustrations, and to the questions referred to as test questions, must be overruled. The testimony concerning a certain curved mark on the pavement, one hundred and eighty-four feet long, discovered one or two hours after the accident, was not objected to when offered and the motion to strike it out later was properly denied. The evidence was in the casé for the consideration of the jury, and it was for them to say upon the whole evidence whether the mark was caused by the defendant’s automobile. The defendant asked the trial judge to rule that unless they found beyond a reasonable doubt [211] that the so called one hundred and eighty-four foot mark on the pavement was caused by the operation of the defendant’s motor vehicle all evidence concerning it should be disregarded by them, as well as any inference by reason of the existence of the mark as to the speed or other manner of operation of the defendant’s car. The judge was "under no obligation to select this part of the evidence for instruction. The case was for the jury on the whole evidence. See Commonwealth v. Johnson, 188 Mass. 382, 387; Commonwealth v. Feci, 235 Mass. 562, 571. The defendant’s rights were sufficiently protected by the parts of the charge referring to the significance of certain evidence if the jury believed the testimony and stating that all essential allegations necessary to constitute the offence must be established beyond a reasonable doubt. There was no reason for giving any ruling as to the duty of a person when called upon to act in an emergency. The instructions requested, except in so far as given, were properly refused. The exceptions to the exclusion of questions asked in cross-examination of the witness Heather, and in direct examination of the witness Herbst, are overruled, either because they called for conclusions which were solely within the province of the jury, or for evidence that would be purely speculative and of no value. The hypothetical question to the witness Goggins was properly excluded in the discretion of the trial judge as not containing the elements essential to make the answer helpful to the jury. The objection to the question about liquor, in cross-examination of the witness Herbst, became immaterial because of the answer of the witness. In the discretion of the trial judge, the questions in cross-examination of the witness Kletchka were admissible to show bias or prejudice. Questions calling for conclusions reached by the witness O’Connell from his observation of the condition of one of the tires on the automobile were properly excluded. The judge was justified in striking from the answer of the same witness the word “natural.” All facts in regard to the condition of the tire observed by him were admitted. The [212] witness later testified without objection that the surface of the tire was not different from what would appear on the surface of any tire driven three or four weeks. It appeared, also, that the jury saw this tire on a view. All exceptions argued have been considered. Exceptions overruled.