PHYLLIS B. MAYER, executrix, vs. FREDERICK E. ROCKETT (and seven companion cases ).

PHYLLIS B. MAYER, executrix, vs. FREDERICK E. ROCKETT (and seven companion cases [Note 1]).

362 Mass. 22

February 8, 1972 - June 2, 1972

Essex County

Present: CUTTER, SPIEGEL, REARDON, QUIRICO, & BRAUCHER, JJ.

Evidence that a school bus was operated by one who had no license to do so in violation of G. L. c. 90, Section 8A, and that the operator stopped the bus in a State highway underpass at the direction of his employer in violation of State driving regulations warranted findings of negligence of the operator and the operator's employer, and that such negligence was a proximate cause of an accident which occurred when an approaching tractor-trailer tank laden with gasoline jackknifed and covered the area with flaming gasoline which fatally burned the operators of the tractor-trailer tank and of a car that had stopped behind the school bus. [23]

EIGHT ACTIONS OF TORT in the Superior Court. Writs in the first two actions dated July 11, 1963, and in the other actions, respectively, April 24, 1967, February 6, 1964, March 8, 1963, January 2, 1964, December 16, 1965, and December 24, 1964.

Upon consolidation of the actions, they were tried before Coddaire, J.

John Z. Doherty (David S. Miller & A. Joseph Ross with him) for Frederick E. Rockett & another.

Thomas E. Connolly (Arthur L. Johns with him) for Phyllis B. Mayer, executrix.

Thomas E. Cargill, Jr., for Margaret E. Trudelle, administratrix.

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Christopher H. Worthington, Assistant Attorney General, for the Commonwealth, & Andrew B. Goodspeed, for Maurice W. Starkey, were present but did not argue.

REARDON, J. In these actions of tort for conscious suffering and wrongful death and property damage, the defendants Frederick E. Rockett and Rita P. Fiore have excepted to the denial of their motions for directed verdicts, and in addition allege error in the admission of certain evidence to which exception was taken. The pertinent facts are these. Acting under instruction of his employer, the defendant Rita Fiore, the defendant Rockett stopped a school bus he was driving in the right hand lane of a three lane State highway under a darkened underpass for the purpose of picking up passengers. The plaintiff Phyllis Mayer's deceased husband, Robert Mayer, stopped his car in the middle lane behind the bus, and the plaintiff Margaret E. Trudelle's deceased husband, John Trudelle, driving a tractor-trailer tank heavily laden with gasoline, approached the parked vehicles. Upon its approach, with its brakes on, the tractor-trailer gasoline truck jackknifed and covered the area with flaming gasoline which fatally burned Mayer and Trudelle. The defendant Rockett at the time was not licensed to operate a school bus as required by G. L. c. 90, Section 8A. Article II, 1, of the Rules and Regulations for Driving on State Highways prohibits parking or standing of any vehicle on any street, way, or highway under the control of the Department of Public Works, while art. IIA, 1 (m), prohibits any vehicle from standing or parking in any State highway underpass. The jury could properly have found that the defendants Frederick Rockett and Rita Fiore were negligent. Their violation of the statute and regulations cited was not only evidence of negligence but also could properly have been found to be a proximate cause of the accident which occurred. Milbury v. Turner Centre Sys. 274 Mass. 358 , 361, and cases cited. See Leveillee v. Wright, 300 Mass. 382 , 387-389, and cases cited. Other exceptions brought here by the

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defendants Rockett and Rita Fiore are without merit. They involve either judicial discretion, of which we find no abuse (Murray v. Foster, 343 Mass. 655 , 657), or the admission in evidence of testimony properly admitted because of its bearing on the issue of the defendants' culpability (Boott Mills v. Boston & Maine R.R. 218 Mass. 582 , 585).

Exceptions overruled.

FOOTNOTES

[Note 1] Phyllis B. Mayer, executrix, vs. Rita P. Fiore.

Rita P. Fiore vs. Maurice W. Starkey.

Maurice W. Starkey vs. Rita P. Fiore.

Commonwealth vs. Rita P. Fiore & another.

Margaret E. Trudelle, administratrix, vs. Frederick E. Rockett & another.

New England Telephone & Telegraph Company vs. Rita P. Fiore & others.

Massachusetts Electric Company vs. Rita P. Fiore.