320 Mass. 551 | Mass. | 1947
This action of tort is brought by the administrator of the estate of George F. Johnstone to recover for his conscious suffering and death
The evidence in its aspect most favorable to the plaintiff would have warranted the jury in finding the following facts: On December 13, 1941, the defendant’s agent was operating the trailer truck involved on Vassar Street in Cambridge. He was bound for Providence, Rhode Island. The trailer truck was made up of what is called a B. M. tractor and a Fruehauf trailer. It was thirty feet long and ten feet high. The bottom of the trailer truck was about three feet from the ground; the trailer body was “about 23 feet long and 7j/¿ feet wide.” The cab in front of the body was attached to the trailer by what is called a fifth wheel. The space between the cab and the trailer was about two feet. The width of the cab was about five feet. The operator’s seat was in the left of the cab. At the time of the accident it was very dark and raining hard, and the windshield wiper of the vehicle was in operation. Proceeding along the right hand side of Vassar Street, the vehicle “got just over the crosswalk at .the intersection of Vassar Street and Massachusetts Avenue,” and the operator brought it to a stop at that point and remained there for five minutes waiting for a chance to turn left on Massachusetts Avenue “going in the direction of Boston.” Before starting the truck ahead, he looked to his left and saw a man (the jury could have found that it was the intestate) standing on the edge of the sidewalk “on the edge of the roadway — right at the edge of the curb.” He saw him standing there just before he started up. Before starting he looked again to his left and observed that the intestate had stepped off the curbstone and was walking across Vassar Street. He observed that he had come to a complete stop about three or four feet from him at the left side of the truck. The operator then started his truck, turning to the left, “headed toward Boston,” and stopped when the “tractor” part of the trailer was up toward the car tracks on Massachusetts Avenue about three feet from the rail nearest the front of the tractor. The operator testified that, although he had
The sole contention of the defendant is that there was no evidence requiring the judge to submit to the jury the question of the operator’s negligence, and that the judge was warranted in directing a verdict for the defendant. In support of this contention the defendant argues that the evidence “almost” compels the conclusion that the intestate would have walked into the truck even though it were standing still and that the accident was due solely to the inattention of the intestate. We do not concur in the above contention nor in the argument made in support of it. On the evidence the jury would have been warranted in finding that, although the operator of the vehicle knew that the intestate was crossing the street at the crossing within full view, while the vehicle was stopped, and that
Exceptions sustained.
G. L. (Ter. Ed.) c. 229, § 5, as amended by St. 1937, c. 406, § 3. See now St. 1946, c. 614, § 1, effective January 1,1947.