312 Mass. 584 | Mass. | 1942
These are four actions of tort, two of which are brought to recover damages for the death and conscious suffering of the plaintiff’s intestate, his daughter, a girl of
Orris Street runs substantially east and west, and, at the time of the girl’s injuries, an ordinance of Melrose prohibited coasting on any street or portion thereof, unless such street had been designated for such purpose by the superintendent of public works. At that time streets had been so designated, but Orris Street was not one of them. The front of the Crosby house is about one hundred feet from Orris Street, and the intervening lawn is sloping, the house standing on a knoll with a terrace in front of it. A driveway, which runs diagonally across the lawn from the garage which is situated in the rear and to the west of the house, ends at Orris Street at the extreme easterly end of the Crosby premises, which have a frontage on the street of about one hundred twenty feet. The land fronting on Orris Street and westerly of the Crosby premises rises more abruptly from the Orris Street sidewalk than it does from the sidewalk to the Crosby house. A point where a right angle line drawn from the center of the Crosby house intersects the sidewalk is about fifty-five feet west of the easterly line of the driveway. The rise to the west of the Crosby property interferes "to a certain extent” with the view of the "sloping lawn” of an operator of a motor vehicle travelling to the east on Orris Street. The jury took a view.
The jury could have found that on the day in question at about two o’clock the plaintiff’s intestate and her sister, who was eleven years old, together with three younger boys who were between the ages of five and seven, began to coast down the Crosby driveway on their sleds. When they reached the sidewalk, they would turn their sleds into the
Orris Street was “very icy and very slippery” at the time, and Carlson’s taxicab was travelling at the rate of about twenty miles an hour. There was evidence from the operator of a truck that the taxicab passed him when he was about fifty yards from the comer of Sears Avenue, which is about one hundred seventy-five feet from the easterly line of the driveway, and that when he was about fifteen or twenty feet west of Sears Avenue, after the taxicab had passed him, he saw two children, one with a sled, standing at the “bottom of the hill” at the entrance to the Crosby driveway, between the sidewalk and the gutter. He observed no change of speed of the taxicab. He saw the plaintiff’s intestate crossing the sidewalk into the street dragging her feet. The taxicab stopped about sixty feet to the east of the driveway, “headed into the left [northerly] curb.”
The defendant Rose testified that he was travelling in an easterly direction on Orris Street, which is about twenty-five feet wide; that when he was about fifty or seventy-five
The passenger in the taxicab testified that she noticed the road was very slippery and that she saw the plaintiff’s intestate coasting in the gutter, facing “dead across the street,” when the taxicab “came opposite the Crosby driveway.” From her testimony it could have been found that the taxicab started to turn when its front was at the cross road sign, and that it “ended up with the front of it heading toward the left hand side of the street . . . Way over.”
The only exceptions are to the denial of the defendant’s motion for a directed verdict in each case. The jury found for the plaintiff in each case.
1. We are of opinion that the question whether Rose was negligent was for the jury. General Laws (Ter. Ed.) c. 90, § 17, provides, in part, that no person operating a motor vehicle on any way shall run at a rate of speed greater than is reasonable and proper, having regard to the traffic and the use of the way and the safety of the public. This section also contains provisions as to what shall constitute prima facie evidence of a rate of speed greater than is reasonable and proper, but it has been held that the rates of speed which constitute prima facie evidence afford no justification for proceeding at even a lesser rate, if to do so in the given case would be to proceed at a rate of speed that is not reasonable and proper, having regard to the traffic and the use of the way and the safety of the public. Rasmussen v. Whipple, 211 Mass. 546.
Although Rose testified that he did not see the children standing at the foot of the driveway until he was about
Rose testified that he did not see the plaintiff’s intestate at all until after he came to a stop. The truck driver, however, saw her when she was crossing the sidewalk. On all the evidence, we think it was a question of fact for the jury whether Rose should have seen the plaintiff’s intestate as she was proceeding down the lawn, and at a time when, if he had been travelling at a reasonable rate of speed, he could have stopped in time to have avoided the collision.
2. The defendants contend that the violation-Jay-—the plaintiff’s intestate of the ordinance prohibiting coasting precludes recovery. As the defendants, in their answers, did not set up violation of law by the plaintiff’s intestate as a defence, they are entitled~to have such violation, if any, considered only uTits bearing upon contributory negligence, which they did set up. Herman v. Sladofsky, 301 Mass. 534, 538. See Gleason v. Mann, ante, 420, 422. In the case at bar we are of opinion that the jury could have found that the act of the plaintiff’s intestate in coming down the slope of the lawn and into the street, from its very inception and during its entire course, was against her will and involuntary. The defendants do not contend that there was any act of the plaintiff’s intestate other than the coasting that contributed to her injuries. We are of opinion that the case in this aspect is governed by Towle v. Morin, 295 Mass. 583, and that it was for the jury to determine whether the plaintiff’s intestate was contributorily negligent. See Herman v. Sladofsky, 301 Mass. 534,538,539. ’ ’
F . ,, Exceptions overruled.