Powers v. Loring

| Mass. | Dec 31, 1918

B.TTGG, C. J.

There was testimony tending to show that at half after six o’clock on the evening of Columbus Day, 1916, while leading two horses on the right of the middle of a much travelled highway near the town of Weymouth, the plaintiff’s intestate, walking on the left of the horses but still to his right of the middle of the way, was fatally injured by being struck-by a motor car approaching from behind and driven in the same direction at the rate of about twenty-six -miles an hour by an agent of the defendant engaged in the business of the latter. The road in general was straight, with a slight bend near the place of the accident. The night was pleasant but dark. The deceased carried no lantern. The action is brought under R. L. c. 171, § 2, as amended by St. 1907, c. 375, to recover damages for causing this death.

It could not have been ruled as matter of law that the deceased was not in the exercise of due care and that the burden of proof of contributory negligence resting on the defendant under St. 1914, c. 553, § 1, had been sustained. Apart from the effect of that statute, there was evidence that the deceased was in the exercise of due care. Emery v. Miller, ante, 243. It cannot be ruled as matter of law that failure of a pedestrian upon a main highway to carry a lantern-after dark, even though leading horses, is want of due care. Manifestly, in view of said c. 553, no such ruling could have been made. Mercier v. Union Street Railway, 230 Mass. 397" court="Mass." date_filed="1918-05-27" href="https://app.midpage.ai/document/mercier-v-union-street-railway-co-6434452?utm_source=webapp" opinion_id="6434452">230 Mass. 397. St. 1914, c. 182, relative to lights on vehicles has no pertinency.

It requires no discussion to demonstrate that it might have been found negligent on the part of one driving a motor car at night to overtake and run intq a pedestrian travelling so far as appears continuously in a direct path on the right of a road, without veering to one side or the other.

The defendant’s request for an instruction, to the effect that, said c. 553 was not of itself sufficient to prove the due care required of the intestate under the death statute, was refused rightly under the circumstances here disclosed. Of course the statute is not "proof in its technical sense. But it creates a presumption and a burden of proof. Duggan v. Bay State Street Railway, 230 Mass. 370" court="Mass." date_filed="1918-05-25" href="https://app.midpage.ai/document/duggan-v-bay-state-street-railway-co-6434448?utm_source=webapp" opinion_id="6434448">230 Mass. 370. The case at bar is plainly distinguishable from Pigeon v. Massachusetts Northeastern Street Railway, 230 Mass. 392" court="Mass." date_filed="1918-05-27" href="https://app.midpage.ai/document/pigeon-v-massachusetts-northeastern-street-railway-co-6434451?utm_source=webapp" opinion_id="6434451">230 Mass. 392. The instruction given respecting the meaning of due care was not incorrect. The presumption created by the statute is commensurate with the degree of care required by the law of the deceased person, in order that there may be recovery. The statute is made applicable by its express terms both to civil and criminal actions for causing the death of a person. The presumption in such case is that the deceased was “in the exercise of due care.” It is further provided that “contributory negligence” on his part shall be an affirmative defence to be pleaded and proved by the defendant: Due care and contributory negligence thus are used as correlative terms in this connection. •

The point whether the plaintiff could recover only in the event that the deceased was “actively and actually in the exercise of due care,” is not raised on this record.

Exceptions overruled.