217 Mass. 155 | Mass. | 1914
This is an action of tort to recover damages alleged to have been caused by the negligence of the defendant’s servant.
The plaintiff, while a traveller upon a public street, was struck by a double team driven by the defendant’s servant, and was
There was evidence to show that there were no other teams on the street in that vicinity at the time; that as this team approached the crossing, travelling in the same direction as the plaintiff, it made a great deal of noise and was heard by several persons near by before it reached the cross walk; but the plaintiff testified that he did not hear it or know of its presence until just before he was struck. There was also evidence to show that just before reaching the cross walk the driver turned his team from the right to the left side of the street to avoid a crowd that had gathered in the street on the right side, and then proceeded on the left side within three or four feet of the curb where the plaintiff was struck; that the driver and another man were on the driver’s seat, and as they came down the street they were talking and motioning to one another; and that the team was travelling at the rate of twelve or fourteen miles an hour. If the jury believed this evidence they would be warranted in finding that the plaintiff was injured while in the exercise of due care, by reason of the negligence of the defendant’s servant. The plaintiff and the defendant had equal rights in the use of the highway; neither had an exclusive right
While the team was rightfully being driven along the left side of the street, that fact was competent for the consideration of the jury in passing upon the conduct of the plaintiff. It is presumed that every traveller upon a public way will exercise due care to avoid injury to others; and, while the plaintiff was bound to use proper care himself, he had a right to rely upon this presumption to a certain extent, and it was for the jury to determine whether the plaintiff’s failure to take further precautions rendered his conduct careless and contributed to his injury.
The jury could have found that the team would not have come into collision with the plaintiff if it had continued on a straight course, but that it was carelessly allowed by the driver to swerve to the left and strike him.
Upon the question of the defendant’s negligence the jury could have found that the rate of speed was excessive; that the driver was talking with his companion and unmindful of the presence of the plaintiff upon the street, and was negligent in not seeing him and avoiding the accident.
Most of the cases cited by the defendant are against street rail
There is nothing in this case to distinguish it from many others in which this court has held that the usual questions of the plaintiff’s due care and the defendant’s negligence are for the jury. Murphy v. Armstrong Transfer Co. 167 Mass. 199. Hennessey v. Taylor, 189 Mass. 583. Donovan v. Bernhard, 208 Mass. 181. Shipelis v. Cody, 214 Mass. 452. The rulings requested could not have been given,
Exceptions overruled.
The case was tried before Brown, J., who refused to rule that the plaintiff was not entitled to recover and that the plaintiff was not in the exercisé of due care at the time of the accident and therefore was not entitled to recover. The defendant alleged exceptions.