Negligence, Motor vehicle, In use of way, Causing death, Gross. Evidence, Violation of statute, Admission by plea of guilty, Declaration of deceased person. Damages, In tort.
Two actions of tort, the first action for personal injuries sustained by a woman while riding with her husband in an automobile driven by the defendant, and the second action by the woman as administratrix of the estate of her husband, who was killed in the collision, to recover for the causing of his death, were tried together, and there was evidence warranting findings that at the place of collision a way intersected from the left that on which the two vehicles were proceeding; that the driver of the forward automobile put out his hand indicating that he was about to turn to the left and began turning; that the defendant, disregarding or not seeing the signal and without giving any warning signal, put on additional speed to pass to the left of the driver in front; and, finding him crossing in front, swung more to the left, ran upon street car tracks at the side of the road, put on his brakes, skidded and brought up against a tree. Held, that a finding of gross negligence on the part of the defendant, justifying a verdict for the plaintiff in the action by the woman, was warranted. At the trial of the actions above described, the defendant was called as a witness by the plaintiff, and, subject to exceptions by the defendant, testified in substance that he was familiar with G.L.c. 90, § 24, and that he had pleaded guilty to a charge of violating its provisions on the occasion of the accident which was the basis of the actions. At the close of the evidence, the judge refused to rule that such plea of guilty could not be considered by the jury in the second action upon the question of culpability of the defendant. In his charge to the jury, the judge in substance instructed them that, owing to the form in which the statute stood at the time of the accident, the plea of guilty could not be looked upon by them as in itself an admission of negligence; but that they might consider the fact that the defendant admitted that he had violated the statute; that the violation of such a pertinent statute on the occasion of the accident was evidence of negligence which they might consider if such violation contributed to the accident; and "that the gist of this case is negligence." Held, that (1) Since, under G.L.c. 229, § 5; Sts. 1922, c. 439; 1925, c. 346, § 9, the damages awarded for causing death through negligence are a penalty, and are to be assessed, not as compensation for the loss inflicted, but according to the degree of blameworthiness inherent in the fatal act in all the circumstances of the accident, the refusal of the request for a ruling in the second action was correct: an admission of any degree of culpability was competent evidence for the jury to consider in its award; (2) The evidence was admissible as an admission of violation of a statute, which might be considered by the jury as evidence of negligence; (3) The judge's instructions were correct. At the trial of the actions above described, it was proper to permit the plaintiff to testify that, a mile and a half before they reached the place of the accident, her husband had said to the defendant, "If you drive like that you had better stop the car and we wait for bus to go home," such statement obviously having been made in good faith, before the bringing of the action, of his own knowledge, by one who died before the trial.
WAIT, J.
Satija Dzura and her husband, Stanislaw Dzura, were riding as guests of the defendant in his automobile, when, in attempting to pass to the left of a taxicab driven by one Benevuti, the defendant, to avoid a collision as the taxicab swung to its left, so managed his vehicle that it skidded and was thrown against a tree. The wife was injured. Her husband was killed. These actions were brought by her, one to recover for the injury to herself, the other, as administratrix of the deceased, to recover under G.L.c. 229, § 5, as amended by St. 1922, c. 439, and St. 1925, c. 346, § 9, the penalty for causing his death. After verdicts for the plaintiff, the defendant contends that there was error in refusing to direct verdicts for the defendant; in the admission of evidence; in refusing to instruct that "The plea of guilty testified to in the examination of the defendant cannot be considered by the jury upon the question of culpability of the defendant"; and in the portion of the charge relating to the request.
The evidence, taken most strongly for the plaintiff, would justify the following findings: The defendant, familiar with the locality, approaching a point on the State road in Sturbridge where driveways to the Elms Hotel and to the post office entered the road from his left, and following Benevuti's automobile, was driving at the rate of thirty-five miles per hour. Benevuti, desiring to stop at the post office, slowed somewhat, put out his hand to indicate a left turn, and drove to his left to enter the driveway. He saw in the mirror before him the defendant's car approaching rapidly, with no apparent slackening of speed. He crossed in front of it, immediately heard a crash, and stopped. The defendant, disregarding or not seeing the outstretched hand, put on additional speed to pass to the left of Benevuti; and, finding him crossing in front, swung more to the left, ran upon street car tracks at the side of the road, put on his brakes, skidded and brought up against a tree. Whether he blew a horn to warn Benevuti of his intention to pass was disputable. For the purpose of deciding whether to direct a verdict, the trial judge was bound to assume that he did not. We find nothing in the cases cited by the defendant which required the trial judge to direct verdicts for the defendant on the ground that, as matter of law, the evidence was insufficient to support a finding of gross negligence — "an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care . . . a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence . . . the omission of even such diligence as habitually inattentive and careless men do not fail to exercise in avoiding danger to their own person or property." Altman v. Aronson, 231 Mass. 588, 591, 592, 593. The exact details of the locality of the accident, of the relative position of the intersecting driveways or streets, of the conditions of highway and street railway surface, of speed, distances, precautionary signals, could only be determined by the jury from the conflicting testimony. It cannot be said properly that here there is no combination of circumstances which can amount to gross negligence. Different situations existed in Cook v. Cole, 273 Mass. 557, Clay v. Pope Cottle Co. 273 Mass. 40, and Cannon v. Bassett, 264 Mass. 383. Those decisions are not controlling on the facts which might here be found. In the action for death, proof of simple negligence was sufficient. Flynn v. Lewis, 231 Mass. 550. The cases fall within the decisions in Healy v. O'Riley, 257 Mass. 413, Manning v. Simpson, 261 Mass. 494, Rog v. Eltis, 269 Mass. 466, Blood v. Adams, 269 Mass. 480, McCarron v. Bolduc, 270 Mass. 39, Kirby v. Keating, 271 Mass. 390, Logan v. Reardon, 274 Mass. 83, Parker v. Moody, 274 Mass. 100.
Three exceptions may be disposed of together. They relate to the admission and use of evidence that the defendant was familiar with the requirements of the statute, G.L.c. 90, § 24, as it then stood relating to the operation of a motor vehicle so as to endanger the lives and safety of the public. He testified, against exception, that he was familiar with the statute and that he had pleaded guilty to a charge of violating it in connection with this accident. No record was introduced. No insistence was made on the form of the questions or the absence of the record. The judge rightly instructed the jury that, as the law stood at the time, no question of negligence was raised in a prosecution under the statute. Commonwealth v. Pentz, 247 Mass. 500. He charged that, in consequence, a plea of guilty on that complaint did not admit and could not of itself be considered by the jury as an admission of negligence; but that, since culpability was an issue in the action, the plea could be given in evidence, and could be considered on that issue. In this he was right. Under the statute, although the damages awarded are a penalty, and are to be assessed, not as compensation for the loss inflicted, but according to the degree of blameworthiness inherent in the fatal act under all the circumstances of the accident, Boott Mills v. Boston Maine Railroad, 218 Mass. 582, Fairbanks v. Kemp, 226 Mass. 75, the jurors, not the judge, determine that degree. An admission of any degree of culpability is competent evidence for the jury to consider in its award. It stands like any admission of a fact material to the ascertainment of damages. No question of credibility was raised. It has been decided that a witness may be asked as an admission of the fact charged whether he has pleaded guilty in a criminal matter. The question and answers are admissible, if the admission is competent evidence. Commonwealth v. Fortier, 258 Mass. 98.
On another ground the admission of guilt was admissible. A violation of a statute is some evidence of negligence under our decisions. Milbury v. Turner Center System, 274 Mass. 358, 361. What weight to give it is for the jury under proper instructions such as were here given. The contention that the admission of such evidence is error because it subjects a defendant to double punishment, once, in the penalty imposed in the criminal proceeding, and again in the award of damages in the action for causing a death, is without merit. The offences are different, and, where this is true, penalties are not obnoxious to the principle forbidding double punishment. Commonwealth v. Crowley, 257 Mass. 590. Commonwealth v. Tenney, 97 Mass. 50. We, therefore, find no error in the admission of this evidence, in the refusal of the request or in the portion of the charge dealing with them.
The exception to the admission of a statement of Stanislaw Dzura in criticism of the defendant's driving before the accident is not well taken. Obviously the statement was made in good faith, before the bringing of the action, of his own knowledge, by one who died before the trial. Counsel did not direct the attention of the judge to the necessity that these elements should be found to be true before admitting the evidence. We must assume that, in admitting it, the judge found that the requirements of G.L.c. 233, § 65, were met. Heathcote v. Eldridge, 226 Mass. 168. Horan v. Boston Elevated Railway, 237 Mass. 245, 247.
Exceptions overruled.
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