310 Mass. 213 | Mass. | 1941
On December 15, 1938, at about ten o’clock in the evening, the plaintiff’s intestate, Henry Lucier, while on a public highway in Charlton, was struck and killed by an automobile driven by the defendant. The issues are whether there was any evidence of the defendant’s negligence, whether as matter of law the deceased was guilty of contributory negligence, and whether there was error in admitting certain evidence.
We deal first with the evidence point. The plaintiff called as a witness an investigator for the registrar of motor vehicles. On direct examination the witness testified that he had an opinion as to how far the lights of an ordinary motor vehicle “turned on a low beam” will pick up an object the size of an average man. Against the defendant’s exception he was then permitted to testify that the distance was about thirty to thirty-five feet. Since the defendant himself testified that his lights were on “low beam” at the time of the accident, the distance at which his lights in that
There was evidence of the defendant’s negligence. The accident happened on a straight road in a country district. The defendant himself testified that, although he was "blinded” by the lights of three automobiles coming in the opposite direction, he continued on for about two hundred fifty feet "into that space where he had no vision”; that he looked to the side of the road to guide his car “by the light from the shoulder”; that he did not see the deceased; that if he saw him six feet ahead he "was doing well”; that "there was this black object [the deceased]
It does not appear that as a matter of law the deceased was contributorily negligent. The plaintiff is entitled to the benefit of the due care statute, G. L. (Ter. Ed.) c. 231, § 85. We cannot say that any negligent conduct on the part of the deceased has been proved. The burden of proving such conduct was upon the defendant. Brown v. Henderson, 285 Mass. 192. There is little or no evidence as to what the deceased was doing or how he was proceeding. He was seen only by the defendant and then at the instant when he was hit. All the evidence in the case having any tendency to prove that the deceased was in a position of unnecessary danger or was negligent came from the defendant. But the jury were not obliged to believe the defendant. If they did not believe him all that would be left would be that the deceased was killed upon the highway. This does not prove that he was negligent. He might have been proceeding in a perfectly proper place and manner. Mercier v. Union Street Railway, 230 Mass. 397, 403. Mulroy v. Marinakis, 271 Mass. 421, 423, and cases cited. Snow v. Nickerson, 304 Mass. 63, 65. Ambrose v. Boston Elevated Railway, 309 Mass. 219, 222, 223.
Exceptions overruled.