268 Mass. 440 | Mass. | 1929
This is an action to recover for personal injuries alleged to have been received by the plaintiff when struck by an automobile operated by the defendant.
The plaintiff was a cripple, having lost both legs above the knees in successive accidents, and as a means of livelihood sold lead pencils on the street, and at other times appraised and repaired automobiles at his home. Shortly before the accident he had come to Gardner in an automobile driven by his wife and was seated on a little cart propelled by his hands. He took up a position facing a department store, with his back against a pole on the sidewalk, and engaged in the sale of his wares. There was evidence tending to show that the pole was about four inches from the curb and was about a foot in diameter; that while the plaintiff was in this position, seated on his cart, he heard a sound behind him, received a blow on his right side, and fell on his face on the sidewalk four or five feet from the post; that the defendant had driven her automobile toward the curb and the front right hand wheel had struck the plaintiff. A physician who attended him testified that he found a discoloration over the kidney, which had been ruptured. There was further medical testimony that the plaintiff’s kidney had been ruptured by a blow. There was evidence that as a result of the injury the plaintiff was incapacitated from carrying on his occupation. The defendant testified, and offered other evidence tending to show, that the wheel of her automobile only grazed the pole and did not strike the plaintiff. Upon the conflicting evidence it was for the jury to determine the facts.
The plaintiff was asked on direct examination what his average weekly earnings were just prior to the accident. To the admission of this question the defendant excepted. The final answer was, “Between thirty-four, thirty-five, thirty-six” dollars, but less than $40, and that since the accident
The second exception is to the refusal of the trial judge to give certain requests. We are of opinion that the requests so far as correct in law were in substance given. They related to the conduct of the defendant in the operation of the automobile. Upon this question the judge instructed the jury as follows: “As far as the defendant is concerned, she was bound to exercise that degree of care which the person of ordinary prudence would exercise under the circumstances
The third exception is to the denial of the defendant’s motion for a new trial. Such a motion is addressed to the sound judicial discretion of the trial judge. Manifestly there was no abuse of judicial discretion in denying the motion.
Exceptions overruled.