317 Mass. 145 | Mass. | 1944
This is an action of tort under G. L. (Ter. Ed.) c. 229, § 3, as amended by St. 1941, c. 460, § 2; c. 504, § 2, for negligently causing the death without conscious suffering of the plaintiff’s intestate, aged sixty-five years, who was killed on August 30, 1942, by a street car of the defendant while crossing the car tracks on foot. Hess v.
Under the statute, recovery can be had for the death of a person not a passenger nor an employee only where he was “in the exercise of due care.” Murphy v. Boston Elevated Railway, 262 Mass. 485. Wanamaker v. Shaw, 294 Mass. 416, 420, 421. Brown v. Boston & Maine Railroad, 302 Mass. 90. Hess v. Boston Elevated Railway, 304 Mass. 535. Lydon v. Boston Elevated Railway, 309 Mass. 205. But the burden of proof of his contributory negligence is on the defendant. G. L. (Ter. Ed.) c. 231, § 85. O’Connor v. Hickey, 268 Mass. 454. Regan v. Rosenmark, 272 Mass. 256. Wanamaker v. Shaw, 294 Mass. 416, 420. Snow v. Nickerson, 304 Mass. 63, 65. Ambrose v. Boston Elevated Railway, 309 Mass. 219. Lucier v. Norcross, 310 Mass. 213, 216.
The defendant introduced no evidence, but rested its case upon the plaintiff’s evidence. The judge found that the plaintiff’s intestate was guilty of contributory negligence, and entered a finding for the defendant. The Appellate Division dismissed a report. The case is here on the plaintiff's appeal. ,
The evidence for the plaintiff tended to show the following facts. The street car that killed the deceased was travel-ling easterly toward the center of Boston on the more southerly of two car tracks that ran in a reservation in the middle of Commonwealth Avenue. Sears v. Boston Elevated Railway, 313 Mass. 326. In that reservation were landing platforms, to which crosswalks or paths led from each side of the roadway of Commonwealth Avenue. The day was bright and clear, and the time was half past four in the afternoon. . The deceased was walking across the reservation toward the southerly platform from the northerly side of Commonwealth Avenue, but not on any crosswalk or path. Her head was “down or slightly bent.” The judge found as follows: “I further find that the motorman of the street car involved first observed the intestate while she was standing on the outbound loading platform [the northerly one] about a foot from the [most northerly] car rail and about sixty to eighty feet diagonally away, at which time
The plaintiff’s claim for a report was based wholly upon the refusal to give certain requests for rulings presented by him.
The failure to give the request numbered 2, that want of due care on the part of the plaintiff’s intestate is a defence, could not harm the plaintiff. The judge evidently acted in accordance with that request in finding for the defendant because of a want of due care on the part of the deceased. The request presented no question of the burden of proof.
Request numbered 3 was as follows: “If no direct testimony is available evidence of all the circumstances when sufficiently full may be enough to warrant the inference of due care” of the plaintiff’s intestate. There was “direct testimony.” The question was not whether an “inference of due care” was warranted, for the burden was on the defendant, but whether contributory negligence was proved. The judge found that it was proved. The request was too abstract and intangible to be useful, even if correct.
The same is true of request numbered 5, pointing out that the death of the deceased prevented the judge from knowing what the deceased saw and thought. That obviously was true, except as inferences from her conduct might be drawn. But it was only one consideration bearing on her due care, and under a familiar rule, hereinafter stated, the judge could not be required to lay it down as a proposition of law for the guidance of the tribunal of fact.
As to the second sentence, there was no error in the failure of the judge to grant it in terms, even if he was bound to deal with it separately. The judge found expressly that the deceased did not step in front of a moving vehicle but came in contact with the left side of the street car. That express finding showed that the judge could not have found the deceased guilty of contributory negligence of the sort referred to in that second sentence. In substance the plaintiff had all the practical benefit that he could have derived had that second sentence been given in terms.
Request numbered 8 was plainly within the fragment rule, already mentioned. It was in substance an argument based on some of the facts. The same is true of request numbered 11.
Order dismissing report affirmed.