Drivas v. Barnett

24 Mass. App. Ct. 750
CourtMassachusetts Appeals Court
DecidedSeptember 30, 1987
StatusPublished
Cited by12 cases

This text of 24 Mass. App. Ct. 750 (Drivas v. Barnett) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drivas v. Barnett, 24 Mass. App. Ct. 750 (Mass. Ct. App. 1987).

Opinion

Smith, J.

Golpho Drivas brought a complaint in the Superior Court, as an individual and also as administratrix of the estate of her daughter, Joan D. Andrew. The action arose out of a two-vehicle accident, at the intersection of Circuit and Myrtle Streets in Hanover, that resulted in Andrew’s death. The complaint named as defendants Charles R. Barnett, Jr., the driver of the truck involved in the accident, and his employer, Casoli Sand & Gravel, Inc. (Casoli). A year after the defendants filed their answers to the plaintiff’s complaint, they brought a motion to implead the town of Hanover as a third-party defendant. A judge allowed the defendants’ motion. However, after the third-party complaint had been filed, the judge granted Hanover’s motion for summary judgment and entered judgment for the town.

After a trial on the plaintiff’s complaint, a jury found Barnett negligent and that his negligence was the sole cause of Andrew’s death. The jury assessed damages in the amount of $300,000 against both original defendants. After the verdict, the defendants filed a motion for new trial on the ground that the verdict was excessive. The motion was denied by the trial judge.

On appeal, the defendants claim that the trial judge committed error in several rulings made during the course of the trial. [752]*752They also contend that the denial of their motion for new trial was error. Finally, they argue that the motion judge erred in granting summary judgment in favor of Hanover.

I. The Trial on the Plaintiffs Complaint.

The defendants claim that the trial judge erred when he (1) permitted an expert witness to give opinion evidence, (2) failed to charge the jury on all the issues of material fact contested at the trial, and (3) refused to set aside the verdict as excessive. We summarize only those portions of the evidence that are relevant to our analysis of the issues raised by the defendants.

Circuit Street in Hanover is a two-lane road running east and west. Myrtle Street in the same town runs southeast and northwest and ends when it intersects Circuit Street. The intersection of Circuit and Myrtle Streets forms a “V” with an island between the two ways just before they intersect. No turn is involved for eastbound traffic on Circuit Street. Eastbound travelers planning to stay on Circuit Street at the intersection need bear only slightly to the left.

On August 12, 1982, Andrew was operating her automobile in an easterly direction on Circuit Street toward the intersection. Barnett was driving a truck in a northwesterly direction on Myrtle Street also toward the intersection. Andrew’s automobile was behind a truck operated by one Clark. At the intersection, Clark put his right directional light on and proceeded to turn right onto Myrtle Street. Before Clark turned, he saw Barnett’s truck approaching the intersection at about twenty to twenty-five miles per hour. The two trucks passed each other while both were on Myrtle Street.

Andrew’s automobile proceeded into the intersection. As Barnett approached the intersection, his observation of eastbound traffic on Circuit Street was partially blinded by the truck driven by Clark. He did not see Andrew’s automobile until he was five to ten feet from it. The truck struck the automobile on the passenger side. Andrew died of a fractured skull and a crushed chest as a result of the accident.

a. Admission of expert testimony. The plaintiff’s theory at trial was that Barnett had been in the process of making a left turn as he entered the intersection of Circuit and Myrtle Streets, [753]*753had not yielded the right of way to Andrew, and had struck Andrew’s automobile while she was lawfully driving in the right lane of Circuit Street. The defendants claimed, however, that Andrew, not Barnett, had been making a left turn on entering the intersection, that Andrew had driven her automobile into the left lane of Circuit Street although her view of the intersection had been obstructed by the truck ahead of her, that the impact occurred in the left lane of Circuit Street, and, therefore, that it was Andrew who had negligently caused the accident.

The plaintiff called as her witness an expert in accident reconstruction. His qualifications were not challenged by the defendants. He testified in response to a hypothetical question that, in his opinion, the collision occurred in the east (right) lane of Circuit Street. The defendants objected to that testimony on the ground that the facts assumed in the question were not supported in the record, and that relevant facts were omitted from the question.

It has been held that a witness who has been qualified as an expert “may base his opinion upon facts observed by himself or within his own knowledge and testified to by himself or upon facts assumed in the questions put to him and supported either by admitted facts or by the testimony of other witnesses already given or to be given at the trial, or upon facts derived partly from one source and partly from the other.” Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 527 (1986), quoting from Commonwealth v. Russ, 232 Mass. 58, 73 (1919). Here, the record shows that the expert’s opinion was based partly on his personal observations of the accident scene and examination of exhibits admitted at trial, and also upon facts assumed in the hypothetical question. The record also demonstrates that the facts assumed in the hypothetical question were supported either by the testimony of other witnesses already given or by testimony after the expert witness had finished.

“It is not necessary that the question include all relevant facts; the effect of omission of relevant facts upon the expert’s opinion may be tested on cross-examination.” Liacos, Handbook of Massachusetts Evidence 115 (5th ed. 1981). See also [754]*754M. DeMatteo Constr. Co. v. Daggett, 341 Mass. 252, 261 (1960). The facts that the defendants claim were omitted do not seem to us to be so “significant that their omission from the hypothetical question made the question improper or required striking the answer.” Le Blanc v. Ford Motor Co., 346 Mass. 225, 232 (1963). There was no error.

b. Denial of defendants’ requested jury instructions. The defendants claim that the judge erred when he failed to give three jury instructions that they had requested.

In one of their requests, the defendants asked the judge to instruct the jury that, if they found that Andrew’s view of the intersection was obstructed, she had a duty to slow down and keep to the right of the center line. The judge refused to give the instruction in that form. Instead, he instructed the jury that, if they found that either operator’s view of the intersection was obstructed, that operator was required to slow down and “exercise some control in entering the intersection.” The defendants argue that the judge erred in not instructing the jury that an operator of a vehicle whose view is obstructed has a duty to keep to the right of the center line. We think that this matter was adequately covered in other portions of the judge’s charge. A judge is under no obligation to charge the jury in the specific language requested by a party, so long as the charge is complete and correct in its essentials. Van Dyke v. Bixby, 388 Mass. 663, 670 (1983).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dailey v. Burt
122 N.E.3d 1098 (Massachusetts Appeals Court, 2019)
Brown v. Norfolk & Dedham Mutual Fire Insurance
2011 Mass. App. Div. 35 (Mass. Dist. Ct., App. Div., 2011)
Morrissey v. New England Deaconess Ass'n - Abundant Life Communities, Inc.
458 Mass. 580 (Massachusetts Supreme Judicial Court, 2010)
Furtado v. Levrault
2010 Mass. App. Div. 155 (Mass. Dist. Ct., App. Div., 2010)
Spignola v. City of Leominster
19 Mass. L. Rptr. 497 (Massachusetts Superior Court, 2005)
Rothkopf v. Williams
770 N.E.2d 493 (Massachusetts Appeals Court, 2002)
Hopkins v. Medeiros
724 N.E.2d 336 (Massachusetts Appeals Court, 2000)
Mason v. Town of Princeton
8 Mass. L. Rptr. 241 (Massachusetts Superior Court, 1998)
Posco Investment Corp. v. Commonwealth
5 Mass. L. Rptr. 50 (Massachusetts Superior Court, 1996)
Giusto v. Petruzziello
1994 Mass. App. Div. 72 (Mass. Dist. Ct., App. Div., 1994)
Sanker v. Town of Orleans
538 N.E.2d 999 (Massachusetts Appeals Court, 1989)
Zella v. Worcester Center Associates
1987 Mass. App. Div. 193 (Mass. Dist. Ct., App. Div., 1987)

Cite This Page — Counsel Stack

Bluebook (online)
24 Mass. App. Ct. 750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drivas-v-barnett-massappct-1987.