281 Mass. 240 | Mass. | 1932
This is an action of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff while a pedestrian upon a public way by the negligence of a servant of the defendant in the operation of its automobile. It was conceded that the accident occurred at about six-thirty to seven o’clock in the evening of October 15, 1930; that it was raining at the time; that the defendant was the owner of the automobile which was being driven by its agent on its business; that the driver was duly licensed as an operator and the automobile was properly registered; and that the accident occurred at or near the intersection of East Brookline Street and Shawmut Avenue, in Boston. At that season of the year it was dark at the time. No contention is made that the lights of the automobile of the defendant were not lighted.
The testimony of the plaintiff was in effect that while walking on the sidewalk on Shawmut Avenue, when he reached the corner of East Brookline Street, he stopped, looked to his “left and right and up and down, and couldn’t see any car coming; that he then looked to the right and saw a car there at a standstill, not in motion ”; that he then stepped off into the street and “I got over middle ways on the street . . . maybe a little further than middle ways, and then I looked again, and I saw this car coming by close to me, about a foot . . . near me, and then of course, when I saw the car coming so close to me, I did my best. I hurried as quick as I could ... to get out of the way, and I couldn’t get out of the way and it struck me.” The testimony of the driver of the automobile was that, having driven from Harrison Avenue on Brookline Street as far as Shawmut Avenue, he came to a stop; “I had the windows closed; windshield wiper working; because it was raining very hard, and the windows were pretty well misted. I
The evidence is meagre; consequently the case is very close on the questions of law presented. The governing principles are plain. It would serve no useful purpose to restate or amplify them. We think that it could not have been ruled as matter of law that the defendant had sustained the burden which rested on it of proving that negligence on the part of the plaintiff contributed to his injury. O’Connor v. Hickey, 268 Mass. 454. Gibb v. Hardwick, 241 Mass. 546. Gauthier v. Quick, 250 Mass. 258. Jones v. Plotkin, 273 Mass. 24. Hutchinson v. H. E. Shaw Co. 273 Mass. 51. McGuiggan v. Atkinson, 278 Mass. 264.
Whether the driver of the automobile was negligent is an even closer question. The jury were not obliged to give credence to all the testimony of the driver of the automobile but might discredit that part which tended to exonerate him from fault and believe only that portion tending to show negligence on his part. Of course the occurrence of the accident was not evidence of negligence. The jury could not resort to surmise or conjecture and the burden of proving that the injury to the plaintiff was caused by the negligence of the defendant rested on the plaintiff. Childs v. American Express Co. 197 Mass. 337, 338. Bigwood v.
Judgment for plaintiff in the amount of the verdict plus interest and costs.