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Weiss v. City of Cambridge

Appeals Court of Massachusetts, Middlesex

July 28, 2016


          Heard May 12, 2016.

         Civil action commenced in the Superior Court Department on February 14, 2013.

         The case was tried before Peter B. Krupp, J., and a motion for a new trial was considered by him.

          Keplin K. U. Allwaters, Assistant City Solicitor, for the defendant.

          Christopher C. Mathers for the plaintiff.

          Present: Rubin, Milkey, & Neyman, JJ.

          MILKEY, J.

         During 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.[1] 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.[2]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 therefore affirm.


         The accident.

         According 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."

         Weiss 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 cross.

          The 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."[3] 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.

         The jury instructions.

         The 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 Highway ...

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