Home COMMONWEALTH vs. JOSEPH SOSTILIO.

325 Mass. 143

September 26, 1949 - December 29, 1949

Worcester County

Present: QUA, C.J., LUMMUS, SPALDING, & COUNIHAN, JJ.

A finding of wanton or reckless conduct on the part of the operator of a "midget" automobile in a race on a race track, and his conviction of manslaughter, were warranted by evidence that, while his automobile, four feet wide, was travelling at over forty miles an hour, he attempted to pass another automobile ahead through a two foot space between it and the side of the track, causing it to collide with and overturn a third automobile, as a result of which the operator of the third automobile was killed.

INDICTMENT, found and returned on August 18, 1948.

The case was tried in the Superior Court before Fairhurst, J., under G. L. (Ter. Ed.) c. 278, Sections 33A-33G, as amended. Following a verdict of guilty and sentence, the defendant filed an appeal and assignment of errors.

J. S. Derham, (W. T. Buckley & F. X. Reilly, Jr., with him,) for the defendant.

A. B. Cenedella, District Attorney, (A. A. Gelinas, Assistant District Attorney, with him,) for the Commonwealth.

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LUMMUS, J. The indictment against the defendant was in three counts. The first charged that the defendant, on June 25, 1948, "did assault and beat Stephen D. Bishop, and by such assault and beating did kill Stephen D. Bishop." The second charged that the defendant on that day "did drive a motor vehicle on a race track in a wanton and reckless manner, and did thereby assault and beat Stephen D. Bishop, and by such assault and beating did kill said Stephen D. Bishop." The third charged that the defendant on that day "did in a wanton and reckless manner operate a motor vehicle in a race with other motor vehicles, and as a result of said wanton reckless operation caused mortal injuries to one Stephen D. Bishop, said injury resulting in his death." The jury returned a verdict of guilty on all three counts.

The only assignment of errors is that the evidence did not warrant a conviction upon the indictment, and consequently that there was error in denying the defendant's motion for a directed verdict in his favor.

The injuries that caused the death of Bishop were received during a race of "midget" automobiles at the Mohawk Stadium in Lunenburg, a race course licensed by the selectmen under G. L. (Ter. Ed.) c. 140, Section 181. The race course was elliptical in shape. Its inside circumference was nine hundred thirty-four feet, consisting of two straight courses of two hundred feet each, and two curved ends measuring two hundred sixty-seven feet each. The surface of the track on which the automobiles raced was forty feet wide, but widened to fifty feet at the curved ends. The surface of the track was of black asphalt. There were bankings two feet high on the straight sides of the track, which rose higher on the curved ends. On each of the curved ends there was an apron of gray concrete two feet wide on the inside of the track, which apron was on about the same level as the track but was corrugated and rough. The wheelbase of the "midget" racing automobiles was about seventy inches, and their width was about four feet. The evening of the accident was fair, and the track well lighted. There were six drivers in the race. The automobiles were moving

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at the start of the race. A driver named Niemi started on the inside of the track, in the front row, and opposite him on the outside was Bishop. Behind them were Provencher and Woods, in the next row. Behind them were Bernardi and the defendant, who were put in the rear row because they were the most experienced drivers and had the fastest automobiles.

There was evidence warranting the following findings. When the automobiles had travelled somewhat more than half a lap, the left wheels of Niemi's automobile were only two feet from the inside of the track. The defendant tried to drive his automobile to the left of Niemi's, although there was not sufficient space for him to pass Niemi on the left. The defendant was driving upwards of forty miles an hour. There was evidence that he struck Niemi's automobile, and pushed it to the right into Bishop's automobile, which turned over three times. Other evidence was that the defendant tried to drive to the left of Niemi, causing Niemi to turn to the right to avoid him and to collide with Bishop. Bishop sustained such injuries to his head that he died within a few hours.

The question in this case is whether there is evidence of wanton or reckless conduct on the part of the defendant. Wanton or reckless conduct has been defined as "intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another." Commonwealth v. Welansky, 316 Mass. 383 , 399. Commonwealth v. Bouvier, 316 Mass. 489 , 494. Scaia's Case, 320 Mass. 432 , 434. Wanton or reckless conduct is the legal equivalent of intentional conduct. If by wanton or reckless conduct bodily injury is caused to another, the person guilty of such conduct is guilty of assault and battery. And since manslaughter is simply a battery that causes death, if death results he is guilty of manslaughter. Commonwealth v. Welansky, 316 Mass. 383 , 401. Commonwealth v. Bouvier, 316 Mass. 489 , 494. Sheehan v. Goriansky, 321 Mass. 200 , 204.

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In Commonwealth v. Collberg, 119 Mass. 350 , 353, Endicott, J., conceded that "The common law recognizes as not necessarily unlawful certain manly sports calculated to give bodily strength, skill and activity." Doubtless this is true of certain sports, like wrestling, fencing and American football, which involve as an essential part of the game a certain amount of physical contact. In Regina v. Bradshaw, 14 Cox C. C. 83, where a football player was killed by being struck in the stomach by a charging opponent, Bramwell, L. J., charged that the defendant would be guilty if his conduct was reckless and indifferent to the safety of the other. In the present case physical contact was not an essential part of the racing of automobiles. The insistence of the defendant in attempting to drive past those ahead of him when there was not room to do so, which made a collision almost inevitable, could be found wanton and reckless conduct, and support a conviction for manslaughter.

Judgment affirmed.