277 Mass. 372 | Mass. | 1931
This is an action of tort, tried to a jury, to recover for the death of the plaintiff’s son, a boy nine years of age, immediately following a collision between a small sled upon which the intestate was coasting and a stationary automobile which had been operated by the defendant shortly before the accident. At the close of all the evidence the presiding judge allowed the defendant’s motion for a directed verdict. The jury thereupon returned such a verdict, and the case is before this court on the plaintiff’s exceptions saved to that direction and the action by the jury.
The facts as they warrantably could have been found in support of the plaintiff’s contentions are, in substance, as follows: The accident occurred on Atkins Avenue, in the city of Lynn, at about noon on January 1, 1927. Atkins Avenue begins at Verona Street, is about eight hundred feet in length, has an upward grade, and is a public highway. On January 1, 1927, the roadway of the avenue was covered with “two or three inches of ice,” with ruts in it. At the time of the accident, and before on the same day, there were sixty to eighty children sliding on this avenue. Immediately before the accident the intestate, lying flat on his stomach, with another boy kneeling on top of him, was steering the sled as it coasted down the hill. At the same time, and for twenty minutes before, the defendant’s automobile stood, where it had been left by the defendant,
At the trial the plaintiff offered and the judge received in evidence two sections of the 1923 ordinances of the city of Lynn, which read as follows: “Section 7: No person owning or operating a vehicle shall stop the same with its left side to the curb except on a one-way street.” “Section 8. No person owning or operating a vehicle shall stop or stand the same except with the two wheels of the same nearest the side of the way where said vehicle stops parallel to and not more than six inches from the extreme outer edge of the sidewalk of said way, except on those ways set forth herein.” No exception was saved to the admission in evidence of the ordinance and no motion was made by the defendant to strike out any part of the evidence admitted pertaining to the introduction of the traffic regulations.
The evidence warranted the finding that before the accident there had been sliding there between one and two hours; and on such finding it could have been further found that the defendant when he parked his automobile in violation of the ordinance knew, or should have known from seeing the boys at the top of the hill, that boys were then coasting or about to coast upon the street, notwithstanding the fact that coasting was prohibited on that street.
Upon the plaintiff resting his case the defendant offered in evidence, without objection, the revised ordinances of the city of Lynn adopted in 1920, and particularly § 51 of c. IV of said ordinances, relating to streets, sewers and drains, in effect on the date of the accident. Section 51 reads: “No person shall . . . coast or course upon any sled or sleds . . . in or upon any side-walk, street, square or public place in the city without permission of the commission on ways and
The city of Lynn by virtue of St. 1875, c. 136, § 1, now in substance contained in G. L. c. 85, § 10, had authority to make in 1920 “such rules and regulations in relation ... to the use of sleds or other vehicles for coasting in and through the streets or public ways” as shall be deemed necessary "for the public safety or convenience, with penalties for violation thereof, not exceeding twenty dollars for one of-fence.” G. L. c. 85 was amended by St. 1924, c. 296, by inserting after § 10 a new section which reads: “Section 10A. Selectmen in towns, and the aldermen or other board or officer having charge of ways in cities, may by regulation designate certain ways or parts of ways, other than state highways, upon which and the hours during which coasting may be permitted and may in like manner regulate the use of such ways by vehicles during such hours.” This section was not intended to repeal the authority theretofore conferred upon towns and cities by § 10 of G. L. c. 85, nor by reason of any inconsistency with the provisions of G. L. c. 85, § 10, does it operate by necessary implication to make void ordinances adopted previous to the quoted amendment. The revised ordinances passed in 1920 were admitted in evidence without objection or exception as in effect on the date of the accident.
There is no evidence in the record to the effect that Atkins Avenue was at the time of the accident a street designated by the commission on ways and drainage on which coasting would be permitted. It is the contention, however, that the city of Lynn under St. 1875, c. 136, § 1, G. L. c. 85, § 10, had
Exceptions overruled.