280 Mass. 199 | Mass. | 1932
This is an action of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff, while driving his automobile, through collision with an automobile owned by the town of Winthrop, used as a part of its fire apparatus for the chief of . the fire department and negligently operated by the defendant. The collision occurred in that town on the afternoon of a July day near a so called island in the triangular space where Hermon and Pauline streets, meeting nearly at right angles, form a square by conjoining with Winthrop Street which enters the square almost directly opposite Hermon Street and leaves the square in a direction somewhat as an extension of Pauline Street. The plaintiff testified that he was driving on Pauline Street on the right hand side intending to go straight up Winthrop Street, that as he approached Hermon Street he slowed down to about eight miles an hour, that looking in both directions he was five to eight feet into the intersection when, not having heard its gong or signal, he saw the chief’s automobile on his left about one hundred fifty yards down Hermon Street moving toward the square at the rate of between fifty and sixty miles an hour, that he then put his automobile in second speed and “stepped on the gas and shot across the street, bringing up at the curbing of an island in the center of the square and almost stopped,” that just as he was coming to a stop the left, rear wheel of his automobile was struck by the chief’s automobile. Thus the situation confronting the plaintiff was that as he approached and went into the square there was a street almost in front of him along which he intended to go, there was a street on his right and there was a street on his left on which the automobile of the chief of the fire department was approaching on its way to a fire in response to an alarm. Its course was along Hermon Street into the intersection and into Winthrop Street in the opposite direction from that intended by the plaintiff.
It is provided by § 7A, inserted in G. L. c. 89 by St. 1925, c. 306, § 2, as amended by St. 1926, c. 278, so far as here material, that “Upon the approach of any fire apparatus
The reasons already stated show that whether the plaintiff violated G. L. c. 89, § 7, in not observing the superior right of way of the fire apparatus, or G. L. c. 90, § 14, as amended by St. 1925, c. 305, as to approaching an intersecting way, were questions of fact to be settled by the jury and could not have been ruled adversely to the plaintiff as matter of law.
The circumstances disclosed by the evidence and hitherto summarized also required, in the opinion of a majority of the court, the submission to the jury of the question of the due care or contributory negligence of the plaintiff.
In accordance with the terms of the report, the verdict entered for the defendant by order of the trial judge under leave reserved pursuant to G;. L. c. 231, § 120, is set aside, the verdict of the jury as first returned is to stand and judgment is to be entered for the plaintiff oh that verdict.
So ordered.