EDMUND ANZONI vs. AUGUSTINE GOSSE. LOUIS RUSSO vs. SAME. MARION WALSH vs. SAME. NICHOLAS ANZUONNI vs. SAME.

CARROLL, J. These four actions of tort arose out of a collision between a motor cycle operated by the defendant and a motor vehicle in which the four plaintiffs were riding. The motor vehicle was driven by Anzuonni.

There was evidence that the motor vehicle was moving in a northerly direction, on the North Shore Drive in Revere, at the rate of fifteen or twenty miles an hour on the right hand side of the highway; that there was no traffic in front moving north; that traffic was coming from the opposite direction; that the defendant's motor cycle was first seen by one of the plaintiffs about two hundred feet distant from the plaintiffs' automobile; that the defendant "was passing another motor vehicle proceeding southerly and cutting in and out"; that "Suddenly the motor cycle appeared from behind a motor vehicle going southerly, and just in front" of the plaintiffs' automobile "came across the road and suddenly turned in a diagonal position and struck the left front wheel of the" plaintiffs' motor vehicle; that the "automobile went, through the fence on the right hand side into the marsh"; that when the collision occurred the "motor cycle was eight feet on [the] wrong side of the road." A southbound automobile

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operated by one Rounds was in front of the defendant's motor cycle. It could have been found that the defendant was about to pass this automobile when the collision took place. There was evidence that the highway was twenty-five or thirty feet wide with twelve or fifteen feet on each side of the center of the street.

There was a verdict for each of the plaintiffs. The defendant concedes there was evidence of his negligence and of the plaintiffs' care. His exception is to a portion of the charge. The judge in the course of his charge directed the attention of the jury to the law of the road, G. L. c. 89, and referred to § 2 which reads: "The driver of a vehicle passing another vehicle traveling in the same direction shall drive to the left of the middle of the traveled part of a way; and, if it is of sufficient width for the two vehicles to pass, the driver of the leading one shall not wilfully obstruct the other," and said, in effect, "Where did this collision take place with reference to the Rounds car? . . . You see it is impossible to observe the law of the road by going between two cars that are passing each other . . . because as to the one you are passing . . . you have got to keep to the left of the middle of the road, and if there is another coming in the opposite direction that is passing the first car, you have got to keep to the right of the middle of the road, and you can't do both and observe the law. So that . . . if . . . Rounds's car and . . . [the plaintiffs'] car were in the act of passing each other, Mr. Gosse could not pass between them and observe the law of the road, because as to one or the other he would be violating it. Is that what happened? If that is what happened, did any violation of his contribute to the injury?" The judge then went on to say that the question whether any violation of the law of the road contributed to the plaintiffs' injury must be considered; that if the collision occurred on Gosse's right hand side of the road while passing Rounds "you might say while Mr. Gosse should have passed to the left of the middle of the road in passing Rounds, and was therefore violating the law, he was in a far safer position as to Anzuonni than if he

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had been observing it, and been on Anzuonni's side." The judge then fully and accurately instructed the jury concerning the rights of the parties if the collision happened as contended by the plaintiffs, that is, on their right hand side of the road.

While it was not contended by the plaintiffs that the defendant was on his right hand side of the road, if the jury found it to be a fact that the defendant was in this situation, then if his violation of the law of the road contributed to the plaintiffs' injury it could be considered by the jury. The law of the road as to vehicles passing each other while moving in the same direction is not to be so construed as to prevent in all circumstances one vehicle passing another from remaining on the right side. What is reasonably safe and prudent to be done is to be taken into account, including the width of the road and the amount of traffic and other circumstances, and the question of what is reasonably safe under the circumstances is a question of fact. Smith v. Conway, 121 Mass. 216. And if any failure of the defendant to observe the law of the road contributed to the plaintiffs' injury, the jury could consider this failure in deciding the question of the defendant's contributing negligence.

Even if it be assumed that G. L. c. 89, § 2, was enacted for the benefit of the driver of a vehicle overtaken by a vehicle coming from the rear, the defendant was not harmed by the instruction given. The judge pointed out that the jury must consider whether the violation of the statute contributed to the injury, and after instructing them that if the defendant was on his right side of the way he was in a far safer position so far as the plaintiffs were concerned than if he was on their right side of the road, he said to the jury: "So the question resolves itself down into a matter merely of evidence and the proper inference to be drawn from the facts, to decide whether the person was acting reasonably under the circumstances at the time." The jury we think must have understood that the defendant was not liable unless he was careless in acting in an unreasonable manner, and that this depended

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on all the facts. The defendant did not ask for any specific rulings; his exception to the charge therefore will not be sustained unless substantive error or injustice plainly appears. Hamilton v. Boston Elevated Railway, 213 Mass. 420, 423. There was no harmful error in the charge, the jury were not misled and no injustice was done the defendant.

Exceptions overruled.