Heard May 12, 2016.
action commenced in the Superior Court Department on February
case was tried before Peter B. Krupp, J., and a motion for a
new trial was considered by him.
K. U. Allwaters, Assistant City Solicitor, for the defendant.
Christopher C. Mathers for the plaintiff.
Present: Rubin, Milkey, & Neyman, JJ.
the evening rush hour of December 7, 2011, Mikel Weiss was
walking across 2nd Street in Cambridge, at its intersection
with Binney Street. Before she reached the other side, Weiss
was struck by a truck that was making a left-hand turn onto
2nd Street from Binney Street. The driver of the truck
(driver) was an employee of the city of Cambridge (city), who
was completing a ten-plus hour shift. As a result of the accident,
Weiss suffered serious long-term injuries to both knees,
incurred significant medical bills, and missed several weeks
of work. In the personal injury action that Weiss brought
against the city in Superior Court, the main disputed issue
was the relative degree of fault between pedestrian and
driver. Weiss was in a marked crosswalk when she was struck,
but there was evidence that she was not obeying the
pedestrian signal at the time. The jury found Weiss
thirty-five percent at fault, and therefore her damages award
was reduced by that percentage.On appeal, the city challenges the
instructions the judge gave to the jury regarding the
responsibilities that drivers face pursuant to G. L. c. 89,
§ 11, to yield to pedestrians in marked crosswalks. The
city argues that under its plain language, the statute does
not apply to the circumstances of this case. We disagree and
to undisputed trial testimony, Binney Street is a "major
traffic artery" that is four to five lanes wide at its
intersection with 2nd Street. For its part, 2nd Street is
"more of a side street" that measures only
twenty-four feet across. At the intersection, there is both a
crosswalk across 2nd Street and a pedestrian signal (commonly
known as a "walk light") to inform pedestrians when
they may use the crosswalk. Two witnesses testified, without
contradiction, that the traffic and pedestrian signals at the
intersection were synchronized so that drivers making a
left-hand turn off of Binney Street would have had a green
arrow allowing them to proceed only when the walk light at
2nd Street displayed the familiar icon of a steady, orange
upright hand (instructing pedestrians not to cross).
Witnesses described the road conditions at the time variously
as "cold, wet, rainy, " "a dark night . . .
[with] heavy mist . . . [and] the roads were wet, " and
"poor visibility, dark, rainy."
testified that before she began crossing 2nd Street, she
looked for oncoming traffic and checked the walk light (which
she stated had already changed from the stick figure of a
pedestrian to a flashing upright hand). An eyewitness to the
accident, who was stopped in her vehicle on 2nd Street at the
intersection, contradicted Weiss in two respects. The
eyewitness testified that Weiss had not looked before
entering the intersection and that the walk light had already
changed to a steady upright hand by the time Weiss began to
driver testified that he waited three minutes in the
dedicated left-hand turn lane on Binney Street for the light
to change, and that he entered the intersection only after he
saw the green arrow. He also testified that as he was making
his left hand turn, he quickly looked over his right shoulder
because he heard someone in that direction exclaim "hey,
" which "startled" him and made him think
"like maybe [he] had cut off a bicycle or
something." After he returned his vision to his path of
transit, he saw nothing in front of his vehicle "[a]nd
then from outside [his] vision on [his] left-hand side, Ms.
Weiss stepped in front of the vehicle." Once he spotted
her, he applied the brakes and skidded on the pavement, which
was wet, before hitting Weiss. The driver testified that even
though he was driving no more than ten miles per hour at the
time, the accident could have been avoided had he been
driving slower or had the truck not slid on the wet roadway.
judge instructed the jury with respect to the regulatory
obligations that pedestrians face at signaled crosswalks
pursuant to Federal guidelines incorporated into State law.
See G. L. c. 85, § 2; 23 C.F.R. § 655.603 (2010)
(requiring States to follow the Manual on Uniform Traffic
Control Devices for Streets and Highways of the Federal