277 Mass. 227 | Mass. | 1931
These are three actions of tort to recover for personal injuries received on July 15, 1926, as the result of a collision of the plaintiffs with an electric car of the defendant on Massachusetts Avenue, in North Adams. Arthur Daignault will hereafter be referred to as the plaintiff.
On the day in question the plaintiff, accompanied by his two children, Alice, then about three and one half years of age, and Francis, then about four and one half years of age, had paid a visit to his mother who lived with his brother at number 1665 Massachusetts Avenue, which is located on the northerly side of the highway. The plaintiff testified that he started with the children to leave for his home in Adams at 7:40 p.m. and was on the piazza of his brother’s house with the children where he remained five or six .'minutes; that when he saw the car he intended to take coming from the west around the curve at the top of the hill he started down the steps, holding each child by the
The undisputed evidence showed that when the accident occurred it was daylight and the weather was clear; that there was no trafile on the highway at the time and place of the accident; that there was nothing to distract or confuse the plaintiff as he approached the track on which the car was coming, and that at that time his hearing and eyesight were normal. Before the accident he had often visited his brother at the same house, during the seven years his brother had lived there, and always went there by the electric cars. Upon the plaintiff’s testimony he was half way down the path, when he last looked in the direction of the approaching car — at that time about one hundred sixty-five feet away. It thus appears that at that time he was within eight or nine feet of the northerly rail. He “kept on going” until he stepped over the northerly rail and was instantly struck by the left hand corner of the car. In these circumstances it must be held as matter of law that he failed to exercise
In view of the ages of the minor children it is plain that they were bound by the conduct of their father and the trial judge so ruled. If, as the plaintiff testified, no whistle was sounded by the operator of the car, such failure was immaterial as he knew the car was approaching and was in plain sight from the time he last saw it until he was struck. Welsh v. Concord, Maynard & Hudson Street Railway, 223 Mass. 184,186. Tobin v. Nahant & Lynn Street Railway, 260 Mass. 512, 514.
As the plaintiffs are precluded from recovery because of contributory negligence on the part of Arthur Daignault the. defendant’s exception to the refusal of the judge to direct a verdict in its favor in each case must be sustained. The other exceptions saved by the defendant need not be considered.
In each case the entry must be
Exceptions sustained.
Judgment for the defendant.