272 Mass. 165 | Mass. | 1930
The plaintiff brought an action of tort against Roy Wood and another against William P. Moynihan to recovór damages for personal injuries alleged to have been received by her by reason of being struck and knocked down by a motor truck owned by Wood and operated by Moynihan. The cases were tried together and the plaintiff had verdicts in both. The case against Moynihan is here upon his exceptions to the refusal of
The evidence tended to show that at about one o’clock, p.m., January 25, 1927, when the plaintiff, with another woman, was crossing Haymarket Square, Boston, in a northerly direction, from the subway entrance to the sidewalk in front of the Belief Hospital, she was injured by being struck and knocked down by a motor truck which was being driven by the defendant across the square in a westerly direction from Blackstone Street to Canal Street. There was evidence that the street was wet and slippery as if there had been rain in the morning, though the sun was shining at the time of the accident; that the defendant sounded his horn, shouted and applied the brakes; that the wheels locked; and that the truck then skidded to the right and struck the plaintiff. The testimony as to the speed of the truck and that as to the distance which it skidded were conflicting, but the jury could have found that the speed was from fifteen to eighteen miles an hour and that the truck skidded eighteen feet. The defendant testified that he knew there were “a great number of people, men, women and girls out to lunch at that time walking in and around Haymarket Square and those various side streets,” that it was “a general area where anybody driving an automobile has got to be pretty careful where they are going,” and that there was “a continuous line of traffic coming across this square.” He testified that he was driving his truck through the traffic which was going north into North Washington Street and was passing through an opening in the southbound traffic — there being no car at his right going south “for a brief space” — when he saw the plaintiff and her companion about twenty feet in front of him. He testified further that he knew that the sudden application of the brakes might cause the truck to skid, and that if it had been going slower he could have stopped it. Though the “mere fact that the automobile skidded was not evidence of negligence” (Lambert v. Eastern Massachusetts Street Railway, 240
The request of the defendant for a ruling that the plaintiff was not in the exercise of due care also was refused rightly. The plaintiff testified that before she left the sidewalk at the subway entrance she “looked to see if there was any traffic coming this way”; that she saw traffic coming in front of her up and down North Washington Street, but none from her right, the direction of Blackstone Street; that she could not see Blackstone Street from the sidewalk at the subway entrance, but could do so from a point ten to twenty feet away; that she “was walking along at a fairly reasonable rate of speed” and as she “continued to walk . . . looked both ways constantly” and was aware that traffic from North Washington Street was “coming around.and passed in back of” her, but she saw no truck or vehicle coming from the right at any time before she was struck, did not see the truck operated by the defendant and heard no warning horn or shout. Though the plaintiff was bound by this testimony, the jury would have been warranted in finding that the defendant had not sustained the burden of proving contributory negligence. The plaintiff was entitled to rely to some extent on the belief that the defendant would not operate the truck negligently. Gauthier v. Quick, 250 Mass. 258, 261. Davicki v. Flanagan, 250 Mass. 379, 380-381. Barrett v. Checker Taxi Co. 263 Mass. 252. The
If, by reason of the defendant’s exception to the giving of the plaintiff’s thirteenth request for rulings, any question is before us as to whether the provision of G. L. c. 90, § 14, amended by St. 1925, c. 305, requiring an operator, upon approaching a pedestrian, to “sound a timely signal with his bell, horn or other device for signalling,” which was repealed by St. 1928, c. 166, is applicable in this case, no error is disclosed. This statutory provision dealt with substantive rights rather than with procedure, and, consequently, remained applicable to the case of an accident occurring, as here, before its repeal, though the trial took place after such repeal. Hanscom v. Malden & Melrose Gas Light Co. 220 Mass. 1. Rosenthal v. Liss, 269 Mass.
Exceptions overruled.