ANNIE D. BONDS & others vs. CATHERINE C. CUMMINGS.

ANNIE D. BONDS & others vs. CATHERINE C. CUMMINGS.

357 Mass. 763

February 25, 1970

The declaration in this action of tort contains five counts. Although there are three plaintiffs, Annie D. Bonds, the owner of one of the cars involved in the accident, will be referred to as the plaintiff. The following is a summary of so much of the evidence as is necessary for a determination of the question presented. The accident occurred on April 19, 1963, around 7:30 P.M. on Portland Street, Cambridge. Portland Street was "wide enough for a car to be parked at the curb on each side and also two lines of traffic, one coming in each direction." The defendant testified that as she was driving on Portland Street she "swerved to the right to avoid an oncoming car that just made a turn," and heard a "loud ping." There was evidence that her car struck the left rear and left side of the plaintiff's car, which had been stopped for some minutes "near the curb on its right hand side." On cross-examination the defendant testified that the car which she sought to avoid was "pretty near" on its side of the street but that the plaintiff's car "had been parked about a foot and a half out of line of the other cars." Subsequently the defendant testified that the reason she hit the plaintiff's car was "that another car was coming in the opposite direction" which "was on its own right hand side of the street." A verdict was returned for the defendant on each count. The sole question presented arises from an exception to the charge. The judge charged that according to his memory, -- although the jury's memory was to control -- the "defendant swerved her car to the right to avoid an oncoming car that had just made a turn." He then stated, "If you . . . find this to be

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a fact, then this defendant is saying that she was confronted by a sudden emergency." He then proceeded to explain the applicable law with respect to sudden emergency. The plaintiff excepted to this portion of the charge. No contention is made, or properly could be made, that what the judge said with respect to the doctrine of sudden emergency was erroneous. The plaintiff's objection to the charge is that the evidence afforded no basis for any instructions on the sudden emergency rule. We disagree. There was evidence tending to show that the collision occurred because the defendant was confronted with a sudden emergency. There was also evidence that there was no such emergency. The judge did not instruct the jury that there was an emergency. On the contrary, he left that question entirely for them to determine; he merely told them what law to apply if they found that there was an emergency. We are of opinion that there was no error.

Exceptions overruled.