Walker v. Gage, 223 Mass. 179

223 Mass. 179 | Mass. | 1916

De Courcy, J.

On the evening of November 23, 1910, about half past five o’clock, at or near the junction of Aiken and Perkins streets, in Lowell, the plaintiff’s intestate, Benjamin Hirst, was run over and injured by a two-horse wagon, and there was ample evidence that it was an ice wagon. It was owned by the defendant, and was being driven by one of her employees. In the action for personal injuries, brought by Hirst, there was a verdict for the plaintiff; and in the action later brought by the administratrix for his death the presiding judge directed a verdict for the defendant. The exceptions in both cases raise the questions whether there was evidence for the jury of the negligence of the driver and of the due care of Hirst. The further question in the second case is, was there evidence entitling the plaintiff to go to the jury on the claim that the accident caused the death of her intestate.

There was evidence on which the jury could find the facts to be as follows: Aiken Street runs in a southerly direction from the Merrimack River, and intersects Perkins Street at about a right angle. The ice wagon came southerly from the Aiken Street bridge, and the driver quickened the pace of the horses as he approached Perkins Street. Hirst, who was walking in a northerly direction on Aiken Street and was south of Perkins Street, saw the ice wagon coming toward him. When he reached Perkins Street he hesitated until he saw that the wagon was well across that street, and apparently was going to continue straight ahead on Aiken Street. He then started to cross Perkins Street but had taken only two or three steps when the ice wagon swung suddenly round into Perkins Street and ran over him. The driver proceeded on his way without stopping, and he testified that he saw no one near the crossing. The gas lamp at a corner of the two streets was lighted. On these facts, if believed, there was evidence for the jury of the due care of the deceased and of negligence, on the part of the defendant’s driver. Hennessey v. Taylor, 189 Mass. 583. Crimmins v. Armstrong Transfer Express Co. 217 Mass. 155.

The evidence that the accident caused the death of Hirst was somewhat meagre. He was a man sixty-six years of age, subject periodically to attacks of gall bladder disease, and the immediate cause of his death was blood poisoning resulting from the condition of the gall bladder. There was expert testimony, however, to the effect that the accident lowered his vitality, set up an active inflammation and impaired his power to resist the attacks; and that but for it he very probably would have lived longer-There also was evidence of lessening vitality, suffering and loss of flesh after the accident. While in the hospital from November '23 to December 12, he suffered acute pain in the region of the back, where marks indicated the passing of the wheels over him. In our opinion there was evidence proper for the consideration of the jury that the accident hastened the death of Benjamin Hirst and caused it to occur sooner than it would have happened otherwise. That is enough legally to make the accident the proximate cause of his death. Wiemert v. Boston Elevated Railway, 216 Mass. 598. Larson v. Boston Elevated Railway, 212 Mass. 262. Brightman’s Case, 220 Mass. 17. Madden’s Case, 222 Mass. 487.

In the original action the defendant’s exceptions must be overruled. In the death case the plaintiff’s exceptions are sustained.

Ordered accordingly.