Opinion
No. 12–P–1.
2012-11-19
Gerald CROCKETT v. Eleanor M. BARRY.
By the Court (GRASSO, FECTEAU & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Gerard Crockett sued Eleanor M. Barry for negligence owing to an accident in which Crockett suffered personal injuries after being struck by Barry's car. In answer to the first of several special questions, the jury found that Barry was not negligent. On appeal from a judgment in favor of Barry and from the denial of his motion for a new trial, Crockett maintains that (1) the verdict was against the weight of the evidence and (2) the trial judge abused her discretion in denying his new trial motion. We affirm the judgment and the order denying Crockett's motion for a new trial for substantially the reasons set forth in Barry's brief at pages seven through seventeen.
We could affirm the order denying Crockett's motion for a new trial for the reason, if no other, that he failed to include the motion in the record appendix. See Cameron v. Carelli, 39 Mass.App.Ct. 81, 83–84 (1995). Even were we to pass over that deficiency, and assume that in his motion Crockett argued, as he does on appeal, that the verdict was against the weight of the evidence, he fares no better. Whether to grant a motion for a new trial “on the ground that the verdict is against the weight of the evidence rests in the discretion of the judge.” Moose v. Massachusetts Inst. of Technology, 43 Mass.App.Ct. 420, 426 (1997), quoting from Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520, cert. denied, 493 U.S. 894 (1989). That is especially so when the motion judge was also the trial judge. Gath v. M/A–Com, Inc., 440 Mass. 482, 492 (2003). There was abundant evidence supporting the jury's verdict, and it was for the jury to determine the weight of any conflicting testimony. See Chase v. Roy, 363 Mass. 402, 406–407 (1973). In reaching their verdict, the jury could credit the evidence that Crockett had consumed many beers prior to the accident and that his blood alcohol concentration was at such a high level as to affect his motor skills. Further, the jury could credit the evidence that he did not activate the nearest cross-walk signal, stepped in Barry's travel lane without attention to the signal or oncoming traffic, and wore dark clothing such that he would not be easily visible at that hour to a driver using ordinary care in operation of her vehicle. Were that not enough, there was also evidence before the jury that Barry was operating her vehicle at a reasonable rate of speed when she entered the intersection, that the traffic light was green in her direction of travel, and that she was not negligent in colliding with Crockett, who appeared suddenly in her travel lane. Because the jury could rationally conclude that Barry was not negligent, the judge did not abuse her discretion in denying the plaintiff's motion for a new trial, and we discern no basis for disturbing the jury's verdict.
Neither Crockett's new trial motion nor the judge's order denying that motion have been reproduced in the appendix.
The jury were free to discredit Crockett's testimony that he was in the cross-walk when the accident occurred, as well as that of a cab driver, Mohammed Rhimmes, whose testimony on the point was impeached by Officer James Parise.
Judgment affirmed.
Order denying motion for new trial affirmed.