Robert Clouatre & another vs. Albert Lees

Massachusetts Supreme Judicial Court1947-10-31

321 Mass. 679

Summary · law.co

Holding. The court overruled the defendant's exceptions and upheld the jury verdicts for both the minor plaintiff and his father, finding sufficient evidence of the defendant's negligence and establishing that the questions of negligence and contributory negligence were properly submitted to the jury rather than directed in the defendant's favor.

A sixteen-year-old boy riding a bicycle was struck by the defendant's automobile when the boy entered Oxford Street from a driveway. The collision occurred near a school, in an area where the defendant knew children would likely be present. The defendant was traveling at twenty-five to thirty miles an hour, did not sound his horn, and the road marks indicated a stopping distance of approximately fifty feet, suggesting the defendant may have first noticed the plaintiff at a greater distance than claimed. The plaintiff was traveling slowly at about five miles an hour and had entered the street on a clear day with no obstructing traffic.

The court found sufficient evidence to support jury findings of negligence on the defendant's part. The defendant's high speed, failure to signal, and knowledge that children would likely emerge from the driveway in this location established negligence as a matter for jury consideration. The plaintiff, as a minor, benefited from a statutory provision placing the burden of proving contributory negligence on the defendant. The plaintiff was entitled to assume that motorists would account for the school's presence and the likelihood of encountering children. Although the plaintiff's father, who sought consequential damages, bore the ordinary burden of proving the child's due care, the court determined this too presented a jury question based on the circumstances.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Duty of care owed by motorists in areas adjacent to schools where children are likely to emerge
Sufficiency of evidence to support a negligence finding when a driver fails to use a horn or reduce speed near a school
Allocation of burden of proof regarding contributory negligence in actions by minors versus parental derivative claims
Whether sudden emergence of a child into a vehicle's path constitutes unavoidable accident or negligence by the driver

Procedural posture

The defendant appealed by exceptions from a jury verdict, seeking reversal on grounds that the trial judge erred in refusing to direct verdicts in the defendant's favor on the issues of negligence and contributory negligence.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Lummus, J.

This is an action of tort brought by a minor (hereinafter called the plaintiff) by his next friend, for personal injuries, with a count under G. L. (Ter. Ed.) c. 231, § 6A (St. 1939, c. 372, § 1), in which his father claims consequential damages. Mroczek v. Craig, 312 Mass. 236. McGovern v. Thomas, 317 Mass. 740. There was a verdict for each plaintiff. The case comes here on exceptions of the defendant to the refusal of the judge to direct verdicts in his favor.

The evidence warranted a finding of the following facts. The plaintiff, a boy of sixteen years, about noon on June 1, 1942, a pleasant day, was riding a bicycle near the corner of Pinehurst Street and Oxford Street in Auburn, where there is a store and a gasoline filling station. He rode upgrade from Pinehurst Street through a short driveway between the store and the pumps into Oxford Street, and then heard the screeching of the brakes of the defendant’s automobile, which was coming downgrade on Oxford Street from the plaintiff’s left. The automobile hit the rear end of the plaintiff’s bicycle, throwing him off into the street and injuring him.

There was a school in the neighborhood, on Oxford Street, as the defendant knew. He knew that children would probably be coming through the driveway into Oxford Street, just as the plaintiff did come, but he sounded no horn. The defendant was in a hurry to get home, and was driving at a speed of about twenty-five or thirty miles an hour. He testified that if he were going twenty miles an hour he could stop his automobile in its length, which was fifteen feet. He testified that the plaintiff was only fifteen feet in front of the automobile when first seen. But marks on the road made by the application of the defendant’s brakes were about fifty feet long, and from these the jury could have found that the plaintiff was first seen at a greater distance. When hit, • the- plaintiff was seven or eight feet into Oxford Street, on the surfaced part of the street, riding at about five miles an hour.- There was no traffic on Oxford Street to obstruct the defendant’s view or to impede his action. After the accident, the defendant asked the father of the plaintiff not to employ a lawyer, and said that “everything would be taken care of.”

We think there was evidence for the jury of the defendant’s negligence. The expected presence of school children required a high degree of care. A jury could find negligence in driving even at a speed of twenty-five to thirty miles an hour, without giving any signal, where a boy was likely to come in sight from the driveway just as the plaintiff did. Tripp v. Taft, 219 Mass. 81, 84. Davicki v. Flanagan, 250 Mass. 379, 381. Gaulin v. Yagoobian, 261 Mass. 145. The present case is distinguishable from those in which the person injured suddenly and unexpectedly came out from behind something that obstructed the view, into the path of an approaching vehicle, as in Rizzittelli v. Vestine, 246 Mass. 391, Mroczek v. Craig, 312 Mass. 236, and Dunsmoor v. Cowdrey, 316 Mass. 516.

With the burden of proof on the defendant by virtue of G. L. (Ter. Ed.) c. 231, § 85, it could not be ruled as matter of law that the plaintiff was guilty of contributory negligence. He was entitled to take into account the probability that motorists would regard the presence of the school and the likelihood that school children would be encountered. Pond v. Somes, 302 Mass. 587, 591. Sooserian v. Clark, 287 Mass. 65, 68. Sadak v. Tucker, 310 Mass. 153, 158. Mroczek v. Craig, 312 Mass. 236, 238. Levin v. Twin Tanners, Inc. 318 Mass. 13, 17.

It is true that the father of the plaintiff, under his count for consequential damages, was not entitled, as was the plaintiff himself, to the benefit of G. L. (Ter. Ed.) c. 231, § 85, casting the burden of proof of contributory negligence upon the defendant. The father was required to prove that the plaintiff was in the exercise of due care when his injuries were sustained. Thibeault v. Poole, 283 Mass. 480, 487. Holden v. Bloom, 314 Mass. 309, 315. Hinckley v. Capital Motor Transportation Co. Inc., ante, 174, 178. That remains true notwithstanding St. 1947, c. 386, amending said § 85, because the verdicts in the present action were rendered not only before that statute took effect but also before it was enacted. But though the burden was on the father to prove the due care of the plaintiff, we think the circumstances already recited made the question one for the jury.

Exceptions overruled.