238 Mass. 564 | Mass. | 1921
This is an action of tort to recover for the death of the intestate, which came about under conditions warranting a finding of the due care of the intestate and the negligence of the defendant. The intestate was struck by a car of the defendant while crossing Belmont Street in Cambridge, on Sunday, April 6, 1919, and as the direct result of his injuries then sustained he died the same day. The writ in this action was dated May 13, 1920, was served upon the defendant on May 15, 1920, and was entered in the Superior Court on the first Monday of June, 1920. At the close of the evidence the defendant moved in writing that a verdict be ordered for the defendant upon count one (the death count) of the plaintiff’s declaration. The motion was denied and the defendant duly excepted. At the same time, the defendant submitted written requests for rulings, among them, “ 1. That the plaintiff cannot recover for the death of his intestate . . . since suit was not begun within one year after the injury which caused the death.” The ruling was refused and the defendant duly excepted. At the close of the charge, the request to give the above ruling was again presented and denied; the case was submitted to the jury, who returned a verdict for the plaintiff.
The right to maintain an action for death did not exist at common law. The remedy is one of statute, that against street railways haying its origin in St. 1886, c. 140, which is embodied in R. L. c. 111, § 267, as amended by St. 1906, c. 463, Part I, § 63, St. 1907, c. 392, St. 1912, c. 354 (see now G. L. c. 229, § 3). Brooks v. Fitchburg & Leominster Street Railway, 200 Mass. 8. The statute giving a remedy in tort for damages for loss of life
It follows that the motion to direct a verdict for the defendant on count one of the declaration should have been given; and it may now be entered under G. L. c. 231, § 122.
So ordered.