268 Mass. 524 | Mass. | 1929
This is an action of tort for personal injuries. It was tried with two other cases, one against one Fred Menard, the other against one Thomas F. Sexton, involving the negligence of two members of the Revere fire department arising out of the same accident. The jury-returned a verdict in favor of the plaintiff against each defendant. At the close of the evidence material upon the question of liability, the defendant presented a request in writing that upon all the evidence the court direct a verdict
The evidence introduced in its aspect most favorable to the plaintiff tended to establish that on October 8, 1925, the defendant’s automobile was parked on the southerly-side of Shirley Avenue a short distance from a hydrant near the corner of said street and North Shore Road in the city of Revere; that there was an ordinance of the city of Revere which prohibited the parking of automobiles on Shirley Avenue for more than twenty minutes or after being told by a police officer to move; that a police officer of Revere, a half hour before the occurrence of the plaintiff’s accident, told the defendant to remove his automobile; that the defendant’s automobile had been so parked for a period considerably in excess of twenty minutes up to and including the time of the accident; that on the northerly side of Shirley Avenue directly opposite the drug store on the corner, in front of which the defendant’s car was parked, there was a pile of dirt, thrown from an excavation in the sidewalk, extending out eight feet from the curb; that Shirley Avenue is thirty-one feet in width at about the place of the accident; that the width of “Engine 2” was about seven feet, that of “Combination C” is about six feet and that of the defendant’s car five feet; that at about 12:50 p.m. on said date, while the plaintiff was standing on the southerly sidewalk of Shirley Avenue near the defendant’s automobile, the aforementioned pieces of fire apparatus of the city of Revere, “Combination C” coming down North Shore Road and “Engine 2” travelling on Shirley Avenue, collided in the intersection of said streets; and that “Engine 2” collided with the defendant’s parked car, pushed it forward ten or fifteen feet up on the sidewalk, where it struck the plaintiff with the result that he was severely injured and suffered the loss of his left leg.
The testimony of the defendant established that he was the owner of the automobile in question, that he placed it himself in the position it occupied at the time of the accident; and it tended to prove that he did not know at that
Assuming in favor of the plaintiff that the ordinance of the city of Revere was legally adopted and was in force at the time of the accident, that the defendant had parked his car on Shirley Avenue in violation of the ordinance for
It is settled that a violation of a penal law (ordinance or by-law) at the time of an accident by one connected with it is evidence of his negligence, but not conclusive. Hanlon v. South Boston Horse Railroad, 129 Mass. 310. Upon the facts disclosed by the record, it is obvious the defendant’s violation of the ordinance was not an effective and contributing cause of the injury unless in accordance with the usual experience of mankind the result of that violation of law ought to have been foreseen and apprehended. One is bound to anticipate and provide against what usually happens and what is likely to happen, but is not bound in like manner to guard against what is unusual and unlikely to happen, or what, as is sometimes said, is only remotely and slightly probable. Stone v. Boston & Albany Railroad, 171 Mass. 536, 541. Horan v. Watertown, 217 Mass. 185. Slater v. T. C. Baker Co. 261 Mass. 424. Gordon v. Bedard, 265 Mass. 408, 411, 412. Tried by this test the defendant should not be held to have been negligent in not anticipating that an alarm of fire in the vicinity would bring the fire apparatus upon Shirley Avenue, and that in passing the defendant’s car the driver of one engine would lose control of his engine, collide with another, and from the force of that impact be cast against the defendant’s automobile with force to drive it up on the sidewalk and against any person or thing then thereon. The defendant violated no legal duty owed the plaintiff. The unlawful occupation of the street by the defendant’s
In the view here taken the exceptions taken by the defendant on his motion for a new trial become immaterial and they are overruled without consideration of their merit or otherwise.
Judgment for defendant.