267 Mass. 447 | Mass. | 1929
These are actions of tort under G. L. c. 229, § 5, to recover compensation for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the driver of an automobile truck, one of the defendants, who, at the time of the accident, was the agent of the other defendant acting within the scope of his authority.
There was evidence tending to show that just before midnight on November 14,1925, the automobile truck was being driven along Humboldt Avenue, a street running north and south in which there were two lines of street railway tracks, at a speed of possibly forty miles an hour; that Wyoming Street intersected Humboldt Avenue at right angles from the east, and nearly, but not exactly, opposite, Holworthy Street intersected Humboldt Avenue from the west; that, no horn being sounded, the automobile truck was turned without moderation of speed into Holworthy Street where the plain
Plainly it could not have been ruled as matter of law that the plaintiff’s intestate was guilty of contributory negligence and was lacking in due care. It is provided by G. L. c. 231, § 85, that in actions of this nature "the person . . . killed shall be presumed to have been in the exercise of due care, and contributory negligence on his part shall be an affirmative defence to be set up in the answer and proved by the defendant.” This statute is precisely applicable to the facts here disclosed. All the facts concerning the injury are not shown beyond peradventure. The record is silent as to the observation by the plaintiff’s intestate. The case at bar falls within the authority of Mercier v. Union Street Railway, 230 Mass. 397, 403, 404. Sarmento v. Vance, 231 Mass. 310. Brennan v. Boston Elevated Railway, 261 Mass. 318, 320. It was not intended, by anything that was said in Murphy v. Boston Elevated Railway, 262 Mass. 485, 487, to narrow the scope of G. L. c. 231, § 85, as to either the presumption of due care or the burden of proof respecting contributory negligence, or to
Exceptions overruled.