225 Mass. 402 | Mass. | 1917
As the plaintiff’s automobile was going along Pleasant Street, South Framingham, in a westerly direction, and the defendant’s automobile was proceeding on Cross Street in a northerly direction, the machines came into collision where the two streets intersected at right angles. The accident occurred in the forenoon of a clear, dry November day.- At the southeast corner of this intersection the view of each driver was obstructed by a stone wall and a hedge.
In these circumstances the provisions of St. 1909, c. 534, §§ 14, 16, as amended by St. 1910, c. 605, §§ 5, 6, became applicable. So far as material this statute provides that "where the operator’s view is obstructed either upon approaching an intersecting way or a curve or corner in a way, every person operating a motor vehicle shall slow down and give a timely signal with his bell, horn or other device for signalling.” Further, “Every person operating a motor vehicle on any way in this Commonwealth shall run it at a rate of speed at no time greater than is reasonable and proper, having regard to traffic and the use of the way and the safety of the public. ... It shall be prima facie evidence of a rate of speed greater than is reasonable and proper as aforesaid
The plaintiff testified that he did not blow the automobile horn as he approached Cross Street and that the last time he did blow it was when he came on to Pleasant Street, —■ a point about one thousand feet distant, according to the plan. There was also testimony from which it could be found that as he approached Cross Street the speed of the plaintiff’s car was considerably more than eight miles-an hour; he himself estimating it at fourteen or fifteen miles an hour. As bearing on this evidence the defendant specifically by his seventh and eighth, and incidentally in his eleventh and twelfth requests, asked the judge to instruct the jury in substance, that if they found that the plaintiff at the time of the collision was violating the provisions of the statute with reference to the rate of speed or a failure to blow his horn, such violation of the statute was evidence of negligence on his part.
Subject to the defendant’s exceptions the court denied these requests, and gave the following rulings as requested by the plaintiff: “2. Violation of statutes as to speed and sounding of horn are prima facie evidence only when the facts upon which the plaintiff would be required to slow down or sound his horn are known to him. 3. There must be knowledge of a curve or a thickly settled district or an intersecting street on the part of the driver of an automobile to make it incumbent upon him to slow down or to blow his horn in order to be in obedience to the statute. He does not violate the statute if he does not know these facts. ... 5. The plaintiff, Porter L. Newton, cannot be held responsible for not blowing his horn or for a rate of speed which under other circumstances might be in excess of the. reasonable and proper rate of speed unless he had knowledge that he was approaching such intersection of Cross Street with Pleasant Street.”
We do not think that the judge narrowed the effect of these rulings when, in dealing with the plaintiff’s due care, he charged the jury: “He was coming up a different street; his knowledge of the region was less than that of Thomas McSweeney; but the
We are of opinion that the trial judge was in error in the construction placed by him upon the statute. This penal statute was intended for- the protection of persons lawfully using the public highway. The requirements, that one operating an automobile when approaching an intersecting street shall warn the travellers thereon of his approach, and shall proceed at such a rate of speed as presumably will enable him fully to control his car and thereby avoid collision, are explicit and absolute. Commonwealth v. New York Central & Hudson River Railroad, 202 Mass. 394. Oftentimes the statutory requirements would be rendered ineffective if a person could be excused from complying with them on the ground that he did not observe in broad daylight that there was an intersecting street in front of him. We find nothing in the language or the purpose of the statute to warrant reading into its express terms the modification which was read into it at the trial. If the admitted failure of the plaintiff to sound his horn as he approached the intersection of Cross Street and Pleasant Street, or a violation of the statutory requirement as to speed, directly contributed to the collision in which he was injured, there was such contributory negligence on his part as would preclude him from recovering, even though the defendant also was negligent. McCarthy v. Morse, 197 Mass. 332. Dudley v. Northampton Street Railway, 202 Mass. 443, 446. Bourne v. Whitman, 209 Mass. 155. Berdos v. Tremont & Suffolk Mills, 209 Mass. 489.
As this conclusion renders it necessary to sustain the defendant’s exceptions referred to, the others may be briefly disposed of. On the evidence it was for the jury to say whether the person operating the defendant’s car was his agent at the time of the collision, and whether the collision might have been avoided if he had had the car under control. This disposes of the defendant’s second, third and fourth requests. The fifth and thirteenth are not relied upon. As to the first, we think it was for
Exceptions sustained.
