280 Mass. 482 | Mass. | 1932
These cases are actions of tort for personal injury sustained by the minor plaintiff, and for consequential damages sustained by her father, when Ruth Dirsa came in collision with a motor vehicle operated by the defendant on April 11, 1929, on Lafayette Street in Worcester. The cases were tried to a jury and all material evidence is stated in the bill of exceptions. At the conclusion of all the evidence the defendant filed motions' in writing that the jury be directed to return a verdict for the defendant in each case. The judge denied the motions and the defendant duly excepted. The jury found for the plaintiff in each action, and the cases are before this court on the defendant’s exceptions.
It was agreed between counsel “that the entire street [Lafayette Street] is forty-five feet wide, including sidewalks and that each sidewalk is seven and one half feet wide and that from the curb on the southerly side of the street to the edge of the sidewalk on the northerly side (there being no curb there) is thirty feet.”
The evidence in its aspect most favorable to the plaintiffs’ contentions warranted a finding of the following facts: The accident happened at about 7 p.m., April 11, 1929, at a point about fifty feet westerly from the intersection of Washington and Lafayette streets, and the minor plaintiff (hereinafter referred to as the plaintiff) was picked up about ten feet from the southerly curb and nearly opposite her home at number 15 Lafayette Street. Lafayette Street runs
The wife of the defendant testified, and the jury could find, that she was sitting on the right hand side in the front seat of the automobile; that when the automobile was forty-five to sixty feet from the point of the accident she saw some children on Lafayette Street; that the automobile was then stopped; that as it was started up she saw a truck on her right hand side of the street, and two or three children playing on the sidewalk near it; that before the accident she saw the plaintiff standing on the outside of the northerly sidewalk talking with two other children; that she saw the plaintiff start across the street slowly and then start to run; that her husband’s automobile had not reached the parked truck when she first saw the plaintiff but was about five feet away; that the plaintiff “ran diagonally with her head dropped,” and was hit by the left hand side of the automobile; that there were no other vehicles in the street on the left hand or northerly side of the street except the automobile of the policeman.
The defendant testified, in substance, and the jury could find therefrom, that he knew the neighborhood where the accident occurred; that it was a tenement district in which there were a great many children; that he had been on Lafayette Street fifty or sixty times before the accident occurred; that on the day of the accident he
The defendant did not deny in his testimony that, when the plaintiff was brought to her home, he said: “I am sorry that it happened, but I seen the girl but I thought she would get across. .... She can run fast,” nor did he deny that he later said when he called to see the plaintiff, “He . . . was sorry . . . not to worry, everything will be taken care of.”
On the testimony of the! defendant, his wife, and the mother of the plaintiff, the jury could have found that the defendant saw or should have seen the plaintiff as she left the sidewalk to cross the street, and that he should have recognized and appreciated that a collision was inevitable unless- he stopped his automobile, and that he was blameworthy in that he made no effort so to do. The facts and inferences properly to be drawn therefrom presented the question of the defendant’s negligence. This issue was rightly submitted by the trial judge to the jury. Boni v. Goldstein, 276 Mass. 372, 375.
The defendant raises the issue of the contributory negligence of the plaintiff and contends that, on the facts shown by the record, that defence is established. G. L. (Ter. Ed.) c. 231, § 85. Duggan v. Bay State Street Railway, 230
The negligence of the defendant and the due care of the plaintiff were issues of fact for the jury.
Exceptions overruled.