278 Mass. 544 | Mass. | 1932
Compensation is sought in this action for personal injuries received by the plaintiff in consequence of being struck by an automobile owned and operated by the defendant. There was evidence tending to show that the plaintiff, at about nine o’clock on a sleety December morning, on the southerly side of a main highway, was awaiting an easterly bound trolley car at its regular stopping place. A deep bank of snow three or four feet in width was at the edge of the sidewalk. Automobiles were parked closely, both on the right and on the left of the plaintiff, along the side of the street next the snow, so that the plaintiff, standing two feet away from a parked automobile, was about ten feet into the street from the edge of the sidewalk. The street was icy and very slippery. The automobiles were parked so close together that it was impracticable to stand anywhere else. No one was standing on the sidewalk. A group of ten or fifteen people were together, the plaintiff being on the left and nearer the trolley car approaching from the west. The plaintiff observed the trolley car when it was one hundred fifty or two hundred yards away and later, alongside it, an automobile about one hundred yards away. The trolley car began to slow down for the stop and the automobile of the defendant
There was evidence to support a finding that the plaintiff was in the exercise of due care. Hutchinson v. H. E. Shaw Co. 273 Mass. 51, and cases collected. Quinn v. Miller, 267 Mass. 84. Durling v. Lamontain, 277 Mass. 517. McGuiggan v. Atkinson, ante, 264. McSorley v. Risdon, ante, 415. It could not rightly have been -ruled that the defendant sustained the burden cast on him by G. L. c. 231, § 85, of proving contributory negligence — ■ want of due care — on the part of the plaintiff. O’Connor v. Hickey, 268 Mass. 454. Austin v. Eastern Massachusetts Street Railway, 269 Mass. 420, 423, 424. The case is distinguishable from cases like Doyle v. Boston Elevated Railway, 248 Mass. 89, and Bradley v. Bay State Street Railway, 231 Mass. 572, upon which the defendant relies.
Whether the defendant was negligent with respect to the plaintiff was on all the evidence a question of fact. The surface of the street was very slippery with ice. The evidence as to the weather warranted a finding that this was a somewhat widespread condition and not local to the particular vicinity. There were no chains on the automobile. The defendant had driven his automobile past a trolley car slowing for a stop, and into the tracks, as he was approaching a considerable number of people in readiness to board the trolley car. Toward them, of whom the plaintiff was the nearest, the defendant owed the duty of
Exceptions overruled.