During the late afternoon of March 19, 1980, at approximately 5:00 P.M., Joseph Petras, age eight, was riding his bicycle on Lower Hampden Road in Monson, in the company of his parents, when he was struck and killed by an automobile operated by the defendant John E. Storm. The boy's parents brought an action in the Superior Court against Storm, his employer Lindco, Inc., and Hertz Corporation (from
There was evidence that March 19, 1980, was sunny and seasonably warm, that Lower Hampden Road is hard-topped and at the accident site is twenty feet wide and divided into two lanes of about ten feet each, that the road was free of snow and ice, that traffic at about 5:00 P.M. was light, that the automobile operated by Storm was operating westerly toward a knoll in the road, and that the vehicle struck the boy on the bicycle approximately at the top of a five percent grade in the road. At the time of the incident, the deceased and his parents were traveling single file on their bicycles at the edge of the road in an easterly direction. The order of their procession was the deceased's father first, followed by the deceased and his mother. There was conflicting testimony regarding the speed limit on Lower Hampden Road. Some witnesses testified that traffic control signs placed the speed limit at twenty-five miles per hour while other witnesses suggested that the speed limit was forty miles per hour. Storm's speed was estimated by the deceased's father, when Storm passed him, at approximately fifty miles per hour and by other witnesses, including Storm, at approximately twenty-five to thirty-five miles per hour.
After Storm's vehicle hit the deceased, the brakes locked the wheels, and the automobile skidded about sixty-two feet. Tests conducted after the accident by the Monson police indicated that the speed of Storm's vehicle at the time of the skid was approximately thirty-two miles per hour and that the vehicle was going a few miles per hour faster when it hit the bicycle. The police also concluded, based on their tests, that a driver of an automobile similar to the one being driven by Storm, and going in the same direction, should have seen a boy like the deceased riding a bicycle at a distance of 178 feet. An accident reconstruction expert, testifying for the plaintiffs, agreed with the estimate of speed arrived at by the police but concluded, based on the conditions prevailing at the time of the accident, that the driver of an automobile in the circumstances facing Storm, could first have seen the boy's cap at a distance of 203 feet. Storm's deposition testimony, introduced at trial, was that he first saw the boy on his bicycle about thirty to sixty feet away as he ascended the rise in the road, that the boy suddenly turned his bicycle toward the center of the road into the path of Storm's vehicle, and that he (Storm) simultaneously hit the brakes and turned his automobile to the left to avoid the collision. This testimony was disputed by Mrs. Petras and another eyewitness, both of whom testified that the decedent was going in a straight line when he was hit.
There was further evidence that Storm had consumed two martinis for lunch; that he had drunk according to his testimony one and one-half bottles of beer at a club a short time before the accident, but that according to testimony of other witnesses he had consumed two full bottles of beer at the club; that he had used a bathroom in a house at the scene of the accident and urinated all over the bathroom floor; that to the owner of that house, who had an opportunity to observe him, Storm appeared unsure of what he was doing; that Storm chewed something right after the accident which he testified was a Rolaid; and, according to Storm, that he had not seen the boy
The plaintiffs, consistent with their theory of negligence, seasonably filed written requests, see Mass.R.Civ.P. 51(b), 365 Mass. 816 (1974), that the court instruct the jury that they could consider as evidence of Storm's negligence any violation they found of the following statutes: G.L.c. 90, § 14, which establishes precautions for the safety of bicyclists, G.L.c. 90, § 17, which penalizes speeding, and G.L.c. 90, § 24(1)(a), which punishes an operator who drives a motor vehicle while under the influence of intoxicating liquor. The request for the instruction involving G.L.c. 90, § 24(1)(a), read as follows:
The judge granted the requests predicated on Storm's possible violation of either c. 90, § 14, or c. 90, § 17, and suitably instructed the jury on those two issues. The judge, however, refused the request framed pursuant to c. 90, § 24(1)(a). The plaintiffs made a timely and specific objection to the judge's failure to give the requested instruction.
1. The violation of a criminal statute is "some evidence of the defendant's negligence as to all consequences the statute was intended to prevent." Adamian v. Three Sons, Inc., 353 Mass. 498, 499 (1968). See Memmolo's Case, 17 Mass.App.Ct. 407, 412 (1984). General Laws c. 90, § 24(1)(a), is designed to protect the safety of users of the State's public ways
2. The defendants argue that a trial judge has wide discretion to determine when an instruction like the one requested should be given and that the judge's failure to do so here did not constitute an abuse of that discretion. A judge's discretion with respect to requests for jury instructions in a civil case was the subject of thorough and incisive analysis by Justice Lummus in Barnes v. Berkshire St. Ry. Co., 281 Mass. 47, 50-52 (1932). Important guiding principles can be drawn from Justice Lummus' discussion.
First, and as a general rule, requests seeking an instruction that a finding of certain specified facts (of which there was some evidence) do or do not warrant or require a particular conclusion may, within an exercise of the judge's discretion, be properly refused. "[T]he combinations of facts that may possibly be found by the jury are so numerous in most cases, that to require a judge to state the legal result of each one of them upon request would fill the charge with rulings for the most part
We conclude that the judge erred by not giving an instruction which guided the jury with respect to the legal consequences of a finding that Storm had been in violation of G.L.c. 90, § 24(1)(a), at the time of the accident. Indeed, the instruction requested, on a view of the evidence which the jury could have accepted, falls squarely within the example used by Justice Lummus in his discussion of the second principle. Moreover, we think any potential for unfairness in the instruction arising from the use of the words "further evidence of negligence" would not excuse the need for a suitable instruction on the issue whether Storm was driving while intoxicated. "Even though the request was not strictly accurate in the general form
3. In view of our conclusion that there must be a new trial due to error in the charge, we need not address the other two arguments made by the plaintiffs on appeal with respect to the denial of their motion for new trial.