310 Mass. 461 | Mass. | 1941
The first two actions are brought by a minor to recover for personal injuries sustained when he was
The jury could find that Marston was operating an automobile on a pleasant afternoon in September, 1937, in a northerly direction along the center of a slight curve in Field Parkway, a macadam public highway in Brockton, twenty feet in width, when the minor plaintiff, hereinafter called the plaintiff, riding a bicycle, came upon the highway from a gravel path on the easterly side of the highway, proceeded a short distance in a general southerly direction, and then turned and travelled along an easterly course but a short distance when he was struck by the automobile. There was a large boulder in the southerly side of the gravel path along which the plaintiff was travelling and which would tend to obstruct the view of a person who, like Marston, was approaching from the south. There was also a second boulder south of the gravel path and ten feet east of the highway. The jury took a view. They could adopt the plaintiff’s version of the accident and find that it occurred not opposite the junction of the gravel path and the highway, but to the south of the junction, and they could also accept the plaintiff’s explanation, as hereinafter referred to, for his presence on his left hand side of the highway at the time of the accident. The cases presented the usual questions of fact concerning the liability of the defendants and all of them were properly submitted to the jury. Scranton v. Crosby, 298 Mass. 15. Butler v. Curran, 302 Mass. 1. Nash v. Heald, 306 Mass. 518.
The defendants excepted to two questions asked Marston. One was whether he had noticed signs in the parkway concerning the speed limit, to which he answered “Yes,” and the second question was whether he had seen signs there reading “Speed Limit 20 miles an hour.” He answered
There was no error in the admission of the testimony of Paine that Marston was driving the automobile in the center of the way when it passed the witness at a point about eighty feet south of the junction of the gravel path and the highway, and which the jury could find was about sixty feet from the place of the accident. The relevancy of this testimony is shown by the evidence disclosing the events immediately leading up to the accident. The plaintiff, after he had testified that when he saw the automobile after he had come from the gravel path it was then fifty feet away and approaching him along the center of the way, properly was permitted to testify, subject to exception by the defendants, in substance that he did not think it was safe to cross to his right hand side of the way in front of the automobile. Jeddrey v. Boston & Northern Street Railway, 198
There was evidence that when Marston stopped his automobile he got out and went "half walking and half running” toward the plaintiff; who was by the side of the road about ten feet away from the automobile, and, after looking at the plaintiff, ran back to the automobile and started the motor. Marston testified, however, that he went back to the automobile "to see if it would go,” but that he did not start the motor. The witness Paine, who was at the scene of th,e accident, was permitted to testify, subject to a general exception, that he shouted to the plaintiff, "Don’t worry, Lee, I have got his number.” There was other evidence concerning the movements of Marston subsequent to the accident and before he took the plaintiff to the hospital. The conduct of Marston immediately before and after the collision was relevant upon the issue of his negligence. The remark of Paine, which could have been found to have been made within the hearing of Marston, was not a narrative of any past occurrence but was a declaration accompanying the starting of the motor and was so nearly contemporaneous with the actual impact itself that it could have been found
One who had been an inspector of the registry of motor vehicles for thirteen and one half years, and whose duties comprised the testing of brakes, testified that he was familiar with the surface of Field Parkway. Photographs showing the brake marks made by the automobile at the time of the accident were introduced in evidence. Subject to an exception, he was allowed to state that, from the appearance of the brake marks in the photographs, the brakes were not in good working order. The qualifications of the witness were not questioned. The manner in which the brakes would operate if they were in good condition, including the effect their operation would have upon any of the wheels, was a subject concerning which the opinion of an expert was competent. Jackson v. Anthony, 282 Mass. 540. Van Steenbergen v. Barrett, 286 Mass. 400. The jury could find that the photographs fairly represented the marks made by the automobile, and that an expert with a knowledge of the marks acquired from the photographs could testify as to what the marks indicated in reference to the condition of the brakes. Commonwealth v. Mara, 257 Mass. 198. Lucier v. Norcross, ante, 213. Vedder v. Bireley, 92 Cal. App. 52. Ragan v. MacGill, 134 Ore. 408.
Exceptions overruled.