JOHN J. CANANE & another vs. DOMENIC R. DANDINI.

CUTTER, J. Canane in this action of tort seeks to recover for injuries received in an automobile collision on April 20, 1964, at the intersection of Washington Street and Merriam Avenue, each of which is a public way in Leominster. The owner of the automobile driven by Canane alleges damage to its vehicle. There was a verdict for each plaintiff. The case is before us on Dandini's exceptions to portions of the judge's charge.

Merriam Avenue runs approximately east and west. At its intersection with Merriam Avenue, Washington Street runs nearly north and south, and has "a slight upgrade in a northerly direction." Traffic proceeding north on Washington Street was controlled at the time of the accident "by a stop sign facing . . . [south] on Washington Street." This sign stood about eight feet south of the south curb of Merriam Avenue. The case was tried on the assumption that the sign was maintained "in compliance with law."

Canane was driving north on Washington Street. Dandini was proceeding east on Merriam Avenue. Their vehicles collided. Dandini's right front fender collided with the left side of the vehicle driven by Canane, who testified that, "as he approached the intersection, he stopped with the front of his vehicle approximately even with the stop sign." He saw to his left a vehicle approaching on Merriam Avenue about 200 feet from the intersection. Canane entered the

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intersection. The collision occurred as he "was crossing the southerly half of the east-bound lane of Merriam Avenue." Dandini testified that 300 feet from the intersection his speed was twenty to twenty-five miles an hour; that he slowed down; that (when about fifteen feet from the point of collision) he saw Canane's vehicle when it was just entering or had come within the intersection; and that he (Dandini) started to apply his brakes and to swerve to the left just before the collision.

The trial judge, very briefly and in general terms, defined for the jury an "intersection" and explained negligence. He then closely paraphrased G. L. (Ter. Ed.) c. 89, Section 8, pertinent portions of which are set out in the margin. [Note 1]

After reading Section 8, the judge proceeded, "What does that boil down to? We have here a stop sign. There is some question, supposedly, that he [Canane] did not stop . . .. It is for you to determine whether he did or did not stop in obedience to the sign." He also left it to the jury to determine whether any failure of Canane to stop was an effective cause of the accident. Then he instructed, "The question is, as far as this statute is concerned, who entered the intersection first? If both entered at the same time, the

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person on the right had the right of way if you find there was a stop on the part of Canane at the stop sign. If you find he did stop at the stop sign, failure to stop at the stop sign doesn't enter into this at all. Each person has a right to operate his motor vehicle with due regard to the safety of all others and himself. So what you do is examine . . . Dandini's conduct first to see if there was any negligence, carelessness, or fault on his part. If you find that there was, then you come to the question of examining . . . Canane's conduct, and here the burden of proof is upon the defendant [Dandini]. By statute the plaintiff [Canane] is presumed to be in the exercise of due care, so that the defendant must prove, as far as he was concerned, that . . . Canane was not in the exercise of due care, that he was not prudent, that he was negligent, that he was careless, at fault."

Dandini's counsel, at the close of the evidence, claimed exceptions to two portions of the charge, viz. (a) where the judge "stated in substance that if the jury finds that the plaintiff stopped for the stop sign and then entered the intersection at or about the same time as the defendant, then the defendant is obliged to yield the right of way to the plaintiff," and (b) where the judge charged that, if the jury "find that the plaintiff stopped at the stop sign, then the so-called right of way statute and section applies to this case."

1. General Laws c. 89, Section 8, lays down the general rule governing the right of way of vehicles at intersections. The final clause of the section (see language italicized in fn. 1) makes an exception to the general rule to the extent that a driver is directed to disregard the general rule either (a) by a police officer or (b) by a lawfully maintained traffic sign, light, or signal. A stop sign is such a traffic sign. One directed to stop by such a sign may not have the benefit of the general rule, if the rule grants him the right of way, until he has complied with the order to stop. After he has stopped, he again becomes subject to the general rule and may proceed and thereafter exercise the right of way in accordance with that rule. As stated below, however, he

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proceeds into the intersection subject also to the obligation to exercise that care which an ordinarily prudent man would use in like circumstances. Section 9 defines the duty to stop required by a stop sign.

2. In Massachusetts, even if the driver of a vehicle has the right of way under c. 89, Section 8, the right is by no means absolute. Its possession does not absolve the driver of the duty to exercise due care. Indeed, a driver who has the right of way at an intersection may be negligent, or even foolhardy, if he asserts his right on some occasions. Possession of the right of way is only one consideration to be taken into account in determining whether a driver has performed his duty to use due care.

This duty, we think, requires a driver who has halted at a stop sign to look with reasonable care before entering an intersection and to make efforts to avoid any collision, reasonable in the light of traffic conditions. Accordingly, a driver who has stopped at a stop sign, even if he has the right of way, may be found to be negligent if he proceeds into the intersection before he can do so with reasonable prudence and with suitable regard for his own safety and that of others. See Fournier v. Zinn, 257 Mass. 575, 577; Gray v. Kinnear, 290 Mass. 31, 35; Bresnick v. Heath, 292 Mass. 293, 297-298; Avery v. R. E. Guerin Trucking Co. Inc. 304 Mass. 500, 505-506; Brule v. Union St. Ry. 315 Mass. 268, 272. [Note 2]

We think that, upon facts like those before us, if c. 89, Section 8, is read to the jury, the trial judge should explain to the jury the somewhat limited effect of possessing the right of way

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and the necessity of exercising that right so as to comply with the general duty to use due care. The charge in this respect did not sufficiently state considerations to be taken into account with Section 8. Decoteau v. Truedsson, 339 Mass. 759, 762.

Exceptions sustained.