299 Mass. 492 | Mass. | 1938
This is an action to recover for personal injuries sustained by the plaintiff as a result of a collision of automobiles on November 2, 1932, at or near the intersection of Cross and Lansdowne streets, public highways in the city of Cambridge.
The defendant filed an answer containing a general denial and an allegation that the plaintiff was guilty of contributory negligence.
The case was tried to a jury and a verdict was returned for the defendant. There was evidence which would warrant the jury in finding that both the defendant and Emond (who was the owner and operator of the vehicle in which the plaintiff was riding as a guest) were negligent. The only question presented for our consideration, is whether there was sufficient evidence which made it proper for the judge to submit to the jury the question whether the plaintiff negligently abandoned the exercise of his own faculties and trusted entirely to the care and vigilance of the driver. No contention is made that the instructions of the judge to the jury as to this subject matter did not correctly state the law.
Emond, one Johnson and the plaintiff were fellow workers at a factory on Albany Street in the city of Cambridge. On the day of the accident, when they had finished their work, Johnson entered Emond’s roadster and sat beside him; the plaintiff entered and sat in the rumble seat. The vehicle was driven by Emond “right up” to Cross Street, which is a highway about forty feet wide leading into Lansdowne Street. There was an automobile parked on the corner of Cross and Lansdowne streets to the right of Emond’s roadster, which obscured his vision of what was going along Lansdowne Street until he got by. He had to swing over to get around the parked automobile and the left wheel of his roadster was over the middle of the way.
There was no evidence of any facts which would warrant findings that the plaintiff had reason to distrust Emond’s skill as a driver, or of any conduct on the part of the latter that would require the plaintiff to object to or protest against it. Emond was driving slowly as “he was making the corner.” There was no evidence that the plaintiff saw or could have seen the impending danger. Seated as he was in the rumble seat of the roadster, he was so situated as to be obliged to trust in large part to the driver. In this respect he cannot be said to have been better off than he would have been if seated in the rear seat of a limousine as. was the case in Bullard v. Boston Elevated Railway, 226 Mass. 262, 264. See also Ingalls v. Lexington & Boston Street Railway, 205 Mass. 73, 76. Slowik v. Union Street Railway, 282 Mass. 249, 254. Haberger v. Carver, 297 Mass. 435, 440.
The burden of proof was on. the defendant to establish contributory negligence on the part of the plaintiff. G. L. (Ter. Ed.) c. 231, § 85. Under that statute the plaintiff is
Exceptions sustained.