291 Mass. 179 | Mass. | 1935
This is an action of tort to recover for personal injuries sustained by the plaintiff as the result of alleged negligence of the defendant. The defendant’s answer is a general denial and contributory negligence. The case is before this court on a report which contains all the evidence material to the issues of law presented.
The accident occurred on March 24, 1929, shortly after five o’clock in the afternoon on Presentation Road, a public way in Boston. The defendant, who was called as a witness by the plaintiff, testified that at the time of the accident she was operating a motor vehicle which was registered in
The plaintiff testified in substance as follows: He was ten years old at the time of the trial and was six years old at the time of the accident. Beforé the accident he was on the sidewalk, intending to cross the street. No one was with him as all thé other boys were playing. Before starting to cross he looked in all directions and did not see any automobile coming, and he could see as far as a house approximately four hundred ten feet away. He was three quarters of the way across when he was hit. He did not see the automobile at all before it hit him, nor hear any horn blown. There were no other vehicles in the street from the time he left the sidewalk until he was struck, and nobody was with him at that time. There were some boys on each side of the street before he started to cross. He was not playing in the street at any time on that day, and it was sufficiently light so that he could see to his left for some distance before he started to cross the street. On redirect examination he stated that he looked carefully and did not see an automobile; that he walked across at a gait agreed to by counsel as being two miles an hour, and did not change his speed before he was struck; that he did not look again after leaving the sidewalk. He further testified: The next thing he remembered was being in his house and his father was bathing his head with cold cloths. October 17, 1933, was the first day he had been out of the house since February, 1933, except to go to the hospital three or four times. The last time he was confined at the hospital for six months. From February, 1933, to October 17, 1933, he stayed up only half the day and had a rest-hour. He was still being treated by Dr. Merlin. He further testified to treatment in hospitals until February, 1933, and that thereafter until the time of the trial he was confined to his bed except for three or four hours each day.
There was evidence offered by the defendant tending to show that she sounded her horn, that she was travelling at a, speed of about ten miles an hour, that the plaintiff collided with the right side of her automobile, and that at the time of the accident he was playing in the street with other boys. Two officers called by the defendant testified that the plaintiff told them that he was playing in the street and that another boy pushed him against the automobile.
Upon the conflicting evidence the trial judge properly submitted to the jury the questions whether the plaintiff was in the exercise of due care, and whether the defendant was negligent. The plaintiff at the time of the accident was nearly six years old. He testified that he intended to cross the street and that before he started to cross he looked in all directions and saw no automobile coming. He was required to exercise the degree of care ordinarily to be expected of a boy of his age. It could be found that he had gone three quarters of the way across before he was struck by the defendant’s automobile and that he did not see the automobile before he was struck. Upon this evidence it, could not properly have been ruled that he was not in the exercise of due care. That question was properly submitted to the jury. Patrick v. Deziel, 223 Mass. 505. Jeddrey v. Boston & Northern Street Railway, 198 Mass. 232, 234, 235. Kaminski v. Fournier, 235 Mass. 51, 54. Puccia v. Sevigne, 258 Mass. 234. Jean v. Nester, 261 Mass. 442. Milbury v. Turner Centre System, 274 Mass. 358, 363. There was evidence of negligence of the defendant. Boni v. Goldstein, 276 Mass. 372, 376, and cases cited. Stacy v. Dorchester Awning Co. 290 Mass. 356. Although she testified that she was travelling at a speed of twelve miles an hour, there was evidence that she was operating her automobile at a speed of from twenty to twenty-five miles an hour when the plaintiff attempted to cross the street.
Dr. George F. Keenan, called as a witness for the plaintiff, testified that he had been a physician and surgeon for twenty-seven years; that he had an extensive hospital experience; that he saw the plaintiff on March 24, 1929; that the plaintiff had a lacerated wound of the scalp; that he was nervous and frightened and had a few abrasions on his face besides the lacerated wound; that there were no abnormal reflexes indicating any serious skull injury; that two stitches were taken; that he did not examine the plaintiff’s heart; that he saw the plaintiff three days later; that there was some swelling of the area around the wound, his eyes were puffed and swollen and it was evident that there was some infection in the wound; that the stitch was removed and some material let out, and boric acid pads were put on; that the principal complaint was pain about the wound; that the witness saw the plaintiff at intervals of two or three days until the swelling was entirely gone; that he saw him ten or fifteen times; that the scar would be permanent; that at the time he discharged the plaintiff the wound was healed and so far as could be seen was all right; that his general condition "was such that he knew that Dr. Dunphy was recommended to take care of him; what at the time seemed to be rheumatism”; that there was no perceptible loss of weight from the time the plaintiff was first treated until the witness discharged him; that the plaintiff never complained to him of any rheumatic condition. This witness testified on cross-examination that on April 30 the wound had entirely healed and the plaintiff was discharged; and that from the time he first saw the plaintiff until April 30, 1929, he saw nothing to treat except laceration of the scalp.
The plaintiff contends that this rheumatic condition resulted from the accident and to substantiate that contention
Margaret M. Fitzgerald, the mother of the plaintiff, testified that before the accident he never had been ill; that Dr. Dunphy started treating the plaintiff about a month after Dr. Keenan concluded; that Dr. Dunphy commenced treating the plaintiff the latter part of April, 1929, and continued to do so for quite a while; that the first time she noticed any swelling in the plaintiff’s joints was about four weeks after the accident; that he missed no days
The defendant called as a witness Dr. George V. Buehler who testified that he was a physician and surgeon with extensive experience; that he first examined the plaintiff on April 8, 1929; that the family history he then obtained was practically negative; that Dr. Keenan told him that he found a contusion of the left ankle, abrasions of the left cheek, and lacerations of the left forehead, in which he had placed two stitches and removed them the following week; that there were no fractures, and no X-rays were taken; that he inquired of the plaintiff as to his complaints, and the plaintiff told him that “he had had headaches for a few days; had had no vomiting; that he ate pretty good; and did not complain of his ankle, but he was a little nervous and he did not sleep very well.” This witness further testified that he made an examination of the plaintiff which revealed the plaintiff’s general condition as negative except for some hypertrophie tonsils; that the significance of that condition of the tonsils was that it is generally an indication of some infection; that he then examined the plaintiff as to the places where Dr. Keenan said he was injured; that there was nothing to be seen on the plaintiff’s left ankle; that there were no marks or scars; that on the left cheek there was no mark to be seen; that there was a wound on the outer side of the left forehead which was healing; that this cut was about an inch long and about half an inch wide; that the opinion of the witness then formed was that the plaintiff had sustained some abrasions of the cheek which had healed and not left any marks; that he had some possible injury to the left ankle which had also healed without leaving any marks, and had sustained a wound on the left forehead which had been closed and was then healing. This witness further testified that he examined the plaintiff again on July 19, 1929; that Dr. Dunphy was present and gave the witness his diagnosis, stating that the plaintiff had a typical rheumatic fever, with a temperature ranging from one hundred one to one hundred three and a half, which went from one joint to
Dr. William J. Brickley was called as a witness for the defendant. The record recites that he qualified as a physician and surgeon of large experience and had been associate medical examiner of Suffolk County since 1920; that he had examined a transcript of the testimony of Dr. Keenan and of Dr. Merlin and had seen a copy of the Children’s Hospital record. He testified in direct examination that the plaintiff did not receive the infection of rheumatism through the cut on his head and gave his reasons for that opinion, stating that the cut was not the type of infection following a puncture and giving his reasons for that opinion. He testified that out of two hundred eighty thousand cases he never had seen anyone that had rheumatic infection arising from the type of wound in this case, and that in his judgment it could not occur; that, in his opinion, from the history of the case this accident to the plaintiff did not conduce or bring about directly or indirectly this rheumatic fever. The witness stated at length his reasons for that opinion, which need not here be recited. He further testified that the “heart troubles” of the plaintiff “are offshoots of this rheumatic infection and are part and parcel of it.”
At the close of the evidence the defendant presented a
In accordance with the terms of the stipulation of the parties judgment is to be entered for the plaintiff in the sum of $1,700.
So ordered.