Collings v. Pioneer Shade & Screen Co. , 356 Mass. 729 ( 1969 )

On conflicting evidence which must be viewed in light most favorable to the plaintiffs, Kelly v. American Ry. Exp. Agency, Inc. 315 Mass. 301, the jury could find that the minor plaintiff, a ten year old schoolboy, was struck by the left front of a motor vehicle operated by the defendant Gareeb. They could find that the contact took place at a point in the roadway five feet beyond the midpoint of a posted school crossing intersection, and that Gareeb 200 feet away from the intersection had observed children crossing and assembling on the curb preparing to cross the intersection. On this view of the evidence there was no error in denying the defendants’ motions for directed verdicts. There is no merit to the contention that the judge improperly permitted the recording of the verdicts for the plaintiffs. They were in proper form. The forms of verdicts for the defendants also handed to the judge, on which the word “Guilty” was written, were pure surplusage, were not inconsistent with the verdicts for the plaintiffs, and were explainable because the jurors were serving on both the civil and criminal sides of the court. The judge’s denial of the request to propound a special question on the issue of contributory negligence was within his discretion. Mercier v. Union St. Ry. 234 Mass. 85, 87. Viaux v. John T. Scully Foundation Co. 247 Mass. 296, 301. Coneededly the issues of negligence and contributory negligence had been fully covered in his charge. The foreman’s explicit affirmation to the judge, in the presence of all his fellows in open court before the recording, that the jury did “by its verdict [in each case] intend to award the amount of damages that are written in words on the plaintiffs’ verdict slips and signed by” the foreman is dispositive of the validity of the verdicts. See Lawrence v. Stearns, 11 Pick. 501; Rick v. Finley, 325 Mass. 99, 105-106, and cases cited.

Earl H. Wright for the defendants. John D. Ross, Jr., for the plaintiffs.

Exceptions overruled.