294 Mass. 416 | Mass. | 1936
This is an action of tort in two counts, instituted by the plaintiff, as executor of the estate of Emma Wanamaker, to recover for the death and conscious suffering of said Emma Wanamaker, under G. L. (Ter. Ed.) c. 229, §§ 5, 6. The case was tried to a jury, and on June 14, 1935, a verdict was returned for the defendant on each count. The plaintiff duly saved exceptions to the refusal of the judge to instruct the jury as requested, and to parts of the charge, as hereafter appears. The record contains
The accident took place on December 5, 1934, at about five o’clock in the afternoon, near the junction of Summer and Forest streets in Arlington, Massachusetts. The testate, a pedestrian, was struck by a motor vehicle operated by the defendant. The defendant’s automobile was proceeding in a northerly direction on the easterly side of Summer Street, and came in contact with the testate at a point approximately fifty feet northerly from the Adams Square Market and on the easterly side of said Summer Street, about five or six feet from the white line marking the center of the street. The defendant was operating his automobile at a rate of speed which he estimated at fifteen miles an hour, while another witness testified that it was twenty to thirty miles an hour. Summer Street was a wide street, well lighted and heavily travelled; there were some cars parked along Summer Street in front of the stores in Adams Square, and the defendant had just passed these motor vehicles when the accident occurred. It had turned dark at the time of the accident, and the arc light on the “island” at the junction of Forest and Summer streets was lighted; the lights were turned on on the defendant’s automobile and the defendant testified that he “judged he could see about forty or fifty feet ahead of him.”
The testate was a small woman slightly under five feet in height and weighed about ninety-five pounds. Her clothes and hat were dark. She always wore glasses and had excellent sight for a woman of her years when she had her glasses on. A witness, Helen L. Pierpont, called by the plaintiff, testified in substance that she had come down Forest Street to the junction of Summer Street; that she was just turning the bend to the south when she looked to the right and saw the defendant coming on Summer Street at the rate of twenty to thirty miles an hour; that the automobile was on the right side of Summer Street; that she was near a pole at the turn on Forest Street; that she did not pay any attention to the automobile and was continuing home on
The defendant, called by the plaintiff, testified in substance respecting the accident that he was proceeding along Summer Street in a northerly direction at a speed of about fifteen miles an hour; that he had just passed some automobiles parked along Summer Street in front of the stores in Adams Square; that he could see forty or fifty feet ahead of him; that when he first saw the testate she was "alongside to the left of his left mudguard just at the front of the mudguard”; that at that time she was not more than two or three feet from the mudguard; that the minute he saw her he put on his brakes and pulled his wheel to the right; that "this black object banged into the mudguard and was tossed to the left of the machine”; that he did not see the testate until he was practically right on her; that he could stop his automobile in twenty feet if it was going fifteen miles an hour; that after the accident his automobile proceeded not more than twenty or twenty-two feet; that he did not pull over the white fine in order to pass the truck which was parked in front of the stores; that as he was driving along just before he saw the testate the left wheels of his automobile went about three feet to his right of the white line; that he could not tell where the testate came from; that the left front fender or mudguard of his automobile struck her; that she was a small woman dressed all
The testimony of Arthur Hancock, called by the plaintiff, disclosed in substance that he saw the testate lying on the street and picked her up and put her in the defendant’s automobile; that she was lying about fifty feet away from the store known as the Adams Square Market; that her head was five feet four inches away from the center of the street, that is, on the right side of the street as the defendant’s automobile was progressing.
It is noteworthy that the witness Pierpont, and the defendant are the only witnesses who actually saw the accident and were able to describe the speed and position of the defendant’s automobile before the collision.
At' the close of the evidence the plaintiff filed with the court requests for instructions. The requests numbered 11, 12 and 20 ■ were refused, and the plaintiff duly excepted. At the hearing before this court requests numbered 11 and 12 were waived, and request 20 was briefed and argued. Request 20 reads: “Upon all the evidence as a matter of law the defendant has not proved that the plaintiff’s testate was guilty of contributory negligence in this case.”
G. L. (Ter. Ed.) c. 231, § 85, upon which the plaintiff relies, reads: “Evidence.” “In all actions, civil or criminal, to recover damages for injuries to the person or property or .for causing the death of a person, the person injured or killed shall be presumed to have been in the exercise of due care, and contributory negligence on his part shall be an affirmative defence to be set up in the answer and proved by the defendant.” The statute quoted is applicable under the penal death statutes and consequently to G. L. (Ter. Ed.) c. 229, §§ 5, 6, under which the instant action is instituted. Murphy v. Boston Elevated Railway, 262 Mass. 485. King v. Weitzman, 267 Mass. 447. O’Connor v. Hickey, 268 Mass. 454, 458. There “is no distinction between 'due care’ describing the presumption as to the conduct of the plaintiff and ‘ contributory negligence’ de
The question here is, Was there any credible evidence that the testate, as a matter of fact, was guilty of a lack of care for her safety which contributed to her injury and death? The witness Pierpont in substance testified that it was dark or dusky; that she could see and did see the oncoming automobile of the defendant; that right after the accident she saw the witness Gallagher approaching in his automobile and could see and recognize Gallagher and his sister in it. The testate could not have been confused by the passing of vehicles other than that of the defendant, because the evidence was undisputed that immediately before the collision no such vehicles passed the scene of the accident. There was evidence which warranted a finding that the body of the testate after the accident lay on the easterly side of the white line that marked the middle of the street, with her head toward the westerly side of Summer Street. The testimony of the witness Pierpont to the effect that she could and did see the defendant’s automobile clearly and that anyone standing on the westerly side of the street could have seen the defendant’s automobile clearly, if believed, permitted the jury, with other evidence, to find that the testate crossed Summer Street from its westerly side, that she could and should have seen the defendant’s automobile approaching while she was crossing, and that if she had exercised reasonable care for her safety she would have ceased to advance until the automobile had
The plaintiff excepted to that portion of the charge which reads: "Our law says she is presumed to be in the exercise of due care so there is no burden upon the plaintiff to prove her due care. The burden is upon the plaintiff though to prove every material allegation in his declaration by a fair preponderance of the evidence. That does not mean that verdicts are to be given by suspicion, by conjecture. The burden is still upon the plaintiff to prove his case by a fair preponderance of the evidence. When the defendant comes into court and challenges that due care, that is, when he says by his answer she contributed by her own negligence to the accident, then the burden is upon him to prove contributory negligence, and when that comes about in the trial of a case that presumption then disappears and the due care or negligence of one party or the other is left for your final determination upon the evidence that you get on both sides of the case.”
The charge in essence was sufficiently favorable to the plaintiff, and the plaintiff could not be said to have been prejudiced. Fairly considered it is not a statement, as the plaintiff contends, that the presumption of due care ceased when the defendant pleaded that the plaintiff’s testate was not in the exercise of due care, or that the burden of proof ceased to operate after all the evidence was in.
Exceptions overruled.