Negligence, Motor vehicle, In use of way, Contributory. Proximate Cause. Evidence, Competency.
At the trial of an action of tort for damage to the plaintiff's automobile, findings, that the plaintiff was not guilty of contributory negligence, that the defendant was negligent and that his negligence was the proximate cause of the damage, and a finding for the plaintiff, were warranted on evidence that, as the plaintiff was driving his automobile on a street at twenty to twenty-five miles an hour and had arrived at a point almost abreast of an automobile operated by the defendant, which was parked four or five feet to the left of the center of the street and facing in the direction in which the plaintiff was going, the defendant suddenly and without warning or signal started his automobile and turned it toward the center of the street, "the side of the road on which the plaintiff was traveling"; that the plaintiff turned to the right and applied his brakes and then, to avoid hitting a pole in front of him, turned to the left, skidded, turned completely around and came in collision with a tree and a pole on that side of the street; and that there was no collision between the two automobiles. There was no error in admitting, at the trial above described, a question asked of the plaintiff by his attorney, "What warning did . . . [the defendant] give, if any, before starting his car?" and the plaintiff's answer thereto, "He gave no warning."
CARROLL, J.
The plaintiff, operating his automobile, was going in a westerly direction on East Street, in Ludlow, at the rate of twenty to twenty-five miles an hour. The defendant's automobile was parked four or five feet south of the center of East Street facing west. There was evidence that "as plaintiff got almost abreast of defendant's car the latter suddenly started and turned toward the side of the road on which plaintiff was traveling"; that "there was not more than three or four feet between his [the plaintiff's] car and defendant's car as plaintiff's car passed defendant's car; that plaintiff turned to the right and applied his brakes and then to avoid hitting a pole in front of him turned to the left," skidded, turned completely around and came in collision with a tree and a pole on the south side of the street; that "the tire marks made by the right wheels of defendant's car passed to the north of the center of the road about three or four feet." It was found that the defendant started his automobile toward the center of the street without any warning. There was a finding for the plaintiff. In the Appellate Division the report was dismissed. The defendant appealed.
The care of the plaintiff was a question of fact. The defendant's negligence was also a question of fact: his car was facing west; the plaintiff was moving in this direction; the defendant turned his car toward the center of the street in front of the plaintiff without giving a signal or warning, by his hand or otherwise, that he intended to take this course. This could have been found to be a negligent act. The recent case of White v. Calcutt, 269 Mass. 252, is controlling. The fact that there was no collision of the motor vehicles is not material as it could have been found that the accident resulted from the defendant's negligence. White v. Calcutt, supra. There was no error in admitting the evidence excepted to or in refusing the rulings requested by the defendant.
Order dismissing report affirmed.