Home EVE GOURAS, executrix, vs. ROBERT S. BARCHI & another (and four companion cases).

5 Mass. App. Ct. 845

June 28, 1977

This appeal involves five of six consolidated cases arising from the collision of two automobiles operated by Peter Gouras (Peter) and Robert Barchi (Barchi) in which Peter was killed. Cross actions were brought by Eve Gouras (Eve), Peter's executrix, and Barchi. Actions were also brought by Robert Propatier, a minor, who was a passenger in Barchi's automobile, and his mother against Eve and Barchi. At trial the judge granted Eve's motions for directed verdicts in three cases in which Peter's negligence was alleged as a ground for recovery. Barchi now appeals from judgments entered pursuant to two of those verdicts. He seeks a new trial on the issue of Peter's negligence in those cases (76-209 and 76-210), and in the remaining cases 76-206, 76-207 and 76-208. In case 76-208 Robert Propatier has appealed as well. Barchi also appeals from the judgment entered pursuant to the denial of his motion for a directed verdict on the issue of Eve's right, as Peter's wife, to damages for loss of consortium in case 76-206. 1. With respect to the negligence issue there was some evidence that Peter had failed to signal a left turn and had cut in front of the approaching Barchi automobile in making the turn. Failing to signal a turn is a violation of G. L. c. 90, Section 14B, as amended through St. 1965, c. 149, and, while not conclusive, is some evidence of negligence. Wallace v. Patey, 335 Mass. 220, 222 (1957). Scatena v. Pittsburgh & New England Trucking, 2 Mass. App. Ct. 683, 684-685 (1974). Even if Barchi's testimony that he stood on his deposition statement that he did not see Peter's car before the collision is considered a repudiation of other testimony given by him at trial that he did not see Peter signal (Tupper v. Boston Elev. Ry. 204 Mass. 151, 153 [1910]; Sullivan v. Boston Elev. Ry. 224 Mass. 405, 406 [1916]; Sluskonis v. Boston & Me. R.R. 299 Mass. 413, 415 [1938]; Smith v. Boston Elev. Ry. 304 Mass. 422, 424 [1939]; compare Goodwin v. Walton, 298 Mass. 451, 453 [1937]; Dunbar v. Ferrera Bros. Inc. 306 Mass. 90, 93 [1940]; Fitzgerald v. McClymont, 314 Mass. 497, 499 [1943]), there remains the testimony of Propatier. His statement that the right front of Peter's car was facing him when he looked up did not constitute a repudiation of his earlier testimony that he did not see Peter's left signal flashing or his testimony that Peter cut in front of Barchi. It was for the jury to resolve possible inconsistencies in Propatier's

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testimony. Sanborn v. Brunette, 315 Mass. 231, 237 (1943). Delano v. Garrettson-Ellis Lumber Co. 361 Mass. 500, 502 (1972). "Ordinarily the question of negligence is one of fact for the jury. Only when no rational view of the evidence warrants a finding . . . [of negligence] may the issue be taken from the jury." Zezuski v. Jenny Mfg. Co. 363 Mass. 324, 327 (1973), citing Luz v. Stop & Shop, Inc. of Peabody, 348 Mass. 198, 203-204 (1964), and Beaver v. Costin, 352 Mass. 624, 626 (1967). Barchi is entitled to a jury determination if "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of [him] . . .. [He] is entitled to the benefit of all the evidence most favorable to him, even though his own testimony may have been less favorable." Kelly v. Railway Exp. Agency, Inc. 315 Mass. 301, 302 (1943). Howes v. Kelman, 326 Mass. 696, 696-697 (1951). Campbell v. Thornton, 368 Mass. 528, 535 (1975). On the evidence mentioned above, the judge erred in granting directed verdicts on the issue of Peter's negligence. It was for the jury to decide whether Peter was negligent in turning left and proceeding across the path of Barchi's automobile. Monroe v. Vassalotti, 340 Mass. 764 (1960). See Zawacki v. Finn, 307 Mass. 86, 88 (1940). 2. It was also error to deny Barchi's motion for a directed verdict on the issue of loss of consortium after death. See Minkley v. MacFarland, 371 Mass. 891 (1976). Inasmuch as the cause of action here arose prior to the effective date of the amendment of G. L. c. 229, Section 2, by St. 1973, c. 699, that statute has no application to this case. The judgments in all five cases are reversed. A new trial on the issue of negligence is to be granted on count 1 of 76-206, and in 76-207, 76-208, 76-209 and 76-210. The count for loss of consortium in 76-206 is dismissed.

So ordered.