262 Mass. 22 | Mass. | 1928
This is an action of tort brought by a minor for personal injuries and property damage, resulting from a collision of a motorcycle, owned and operated by him, and a taxicab, owned by the defendant and operated by its employee on its business. The exceptions of the defendant are based upon the refusal of the judge to direct a verdict in its favor and his refusal to give one request for ruling. The exceptions to the charge have not been argued and are treated as waived.
The testimony, taken in its light most favorable to the plaintiff, tended to show that as he was coming along Chandler Street in Boston, ten feet from the curb on his right, the speed of his motorcycle was fifteen miles an hour, which was reduced to eight miles an hour when he was about fifty feet from its intersection with Clarendon Street. Each of the
The request for ruling which was refused was in the following terms: “If the plaintiff upon reaching the intersection of Chandler Street and Clarendon Street saw an automobile 200 feet away on Clarendon Street and approaching him on a down grade at the rate of thirty-five miles per hour such a rate of speed being prima facie illegal, plaintiff is bound to
The requested ruling could not have been given. It assumed as a fact that there was evidence that the plaintiff, when he reached the intersection of Clarendon Street and Chandler Street, saw the defendant’s automobile two hundred feet from Chandler Street coming at the rate of thirty-five miles an hour. His testimony was to the effect that when he approached Clarendon Street; and before he crossed, he looked to his right and saw the taxicab approaching at “about” thirty-five miles an hour and that the taxicab was then “about” two hundred feet away from the intersection of the two streets. The part of the request which called upon the trial judge to rule that upon the facts stated the plaintiff was bound to observe the danger of a collision asked for a ruling on a question of fact. It was for the jury to say when all of the evidence was considered whether that danger should have been observed. The request also failed to take into account any facts concerning the speed of the motorcycle and omitted any reference to the plaintiff’s right to rely to some extent on the expectation that the driver of the automobile would comply with the law when approaching an intersection of streets. Sutherland v. Caruso, 258 Mass. 513, 514. The jury were given general instructions as to the duty of the plaintiff to exercise the care of a reasonably prudent and careful person in approaching and crossing the intersection of the streets, and they were told that if his failure to exercise that care was a contributing cause of the accident he could not recover.
It was said, in substance, in Fournier v. Zinn, 257 Mass. 575, 577, that even if the plaintiff was wrong in his estimate of the speed of the defendant’s automobile and drove his car across the intersecting way when he knew the defendant was approaching at a high rate of speed, it was for the jury to determine whether in so doing he used a proper degree of care.
The evidence tending to prove that the plaintiff had nearly cleared the cross street before the rear of his motorcycle was struck, and that the speed of the taxicab was not at all diminished before the collision, were circumstances bearing both upon the due care of the plaintiff and negligence of the defendant. Jeddrey v. Boston & Northern Street Railway, 198 Mass. 232, 235.
Exceptions overruled.