Opinion
18-P-1337
03-06-2020
COMMONWEALTH v. David M. DONAHUE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from a decision and order of the Appellate Division of the District Court affirming a District Court judge's decision that the defendant was responsible for failure to yield to pedestrians in a marked crosswalk in violation of G. L. c. 89, § 11. The judge's decision was based on evidence that the defendant, while driving a flatbed tow truck, struck and seriously injured two pedestrians in a marked crosswalk on Beacon Street in Newton Center. The defendant's principal claim on appeal is that the judge erred in finding the defendant responsible when the evidence showed that he was not speeding, the victims were crossing the street against the light, the lighting was poor, and the victims were wearing dark clothing. We affirm.
Background. The defendant contested responsibility for the civil traffic infraction pursuant to G. L. c. 90C, § 3 (A) (4). Following an evidentiary hearing before a magistrate, the defendant was found "not responsible." The prosecuting State trooper appealed and a de novo hearing was held before a District Court judge. There was a conflict in the evidence at the de novo hearing. On one hand, the judge heard evidence that the tow truck was moving at a speed of approximately ten miles per hour, the victims were crossing the street against a green traffic light and against a red hand for pedestrians, they were wearing dark clothing, and the accident happened at 7 P.M. when the lighting was poor. When interviewed by the police, the defendant stated that he "never even saw the pedestrians until he hit [them]." Based on that evidence, a Newton police officer certified in accident reconstruction opined that the defendant was not responsible for the collision.
But there was also evidence that the defendant "[came] straight through the intersection and hit[ ] the two pedestrians" and that the impact threw the victims twenty-five to thirty feet. Significantly, the judge was able to independently assess the circumstances surrounding the collision when she viewed videotapes of the accident captured by two surveillance cameras near the intersection. One of the videos shows that the male victim was wearing light colored pants. After considering all of the evidence, the judge found the defendant responsible for failing to yield to pedestrians in a marked crosswalk. On the defendant's appeal pursuant to G. L. c. 231, § 108, the Appellate Division of the District Court reviewed the District Court judge's finding that the defendant was responsible and concluded that the defendant had failed to establish an error of law.
Discussion. General Laws c. 89, § 11, provides that "[n]o driver of a vehicle shall ... enter a marked crosswalk while a pedestrian is crossing ... notwithstanding that a traffic control signal may indicate that vehicles may proceed." We have previously said that "the obvious purpose of the statute is to protect pedestrians from being hit by vehicles in marked crosswalks" and that even "drivers who enjoy a green light ... still must yield to pedestrians who are using a marked crosswalk." Weiss v. Cambridge, 89 Mass. App. Ct. 797, 800-801 (2016). Here, the judge could reasonably conclude from the evidence in this case, including the videotapes that we have independently reviewed, that the defendant could have yielded to the pedestrians in the crosswalk, but failed to do so.
We are not persuaded by the defendant's argument that the judge misinterpreted the statute as one of strict liability. We agree with the defendant that there may be circumstances in which a driver would not be responsible for colliding with a pedestrian in a crosswalk. For example, if a pedestrian suddenly leapt from the sidewalk into a crosswalk in front of a moving vehicle, the driver of that vehicle would not be responsible for failing to yield to that pedestrian. This is not such a case.
The videotapes show that a pickup truck backed away from the crosswalk to let the victims pass moments before the collision. The victims were illuminated by the pickup truck's headlights as they walked in the crosswalk in front of the pickup truck. Immediately thereafter they were struck by the defendant's vehicle which did not brake until after impact. The videotape confirms that the victims were thrown approximately twenty-five to thirty feet by the impact. Here, the judge was in the best position to weigh the evidence and we see no reason to disturb her conclusion. Based on the totality of the evidence presented, the judge reasonably concluded by a preponderance of the evidence that the defendant failed to yield to pedestrians in a marked crosswalk. See G. L. c. 89, § 11.
We reject the defendant's argument that the evidence was insufficient because he was not driving a commercial vehicle as the citation stated. The defendant cites no authority for his claim that "the citation made CDL Vehicle an essential element of the offense," and we have found none. Rather, the unambiguous language of the statute prohibits any driver from failing to yield to a pedestrian in a marked crosswalk.
Finally, the defendant's claims of error regarding the failure to administer an oath to the investigating officer before his testimony and the failure of the judge to recuse herself were not raised in the trial court and are therefore waived. See Cariglia v. Bar Counsel, 442 Mass. 372, 379 (2004) ("We do not consider issues, arguments, or claims for relief raised for the first time on appeal").
We see no error in the judge taking judicial notice of the "jurisdictional responsibilities" of the State police. The jurisdiction of the State police was not disputed and the issue was not material to the defendant's violation of G. L. c. 89, § 11.
Decision and order of Appellate Division affirmed.