Kaminski v. Fournier ( 1920 )

Rugg, C. J.

This is an action of tort to recover damages for the death of Mary Trzybinska. The evidence in its aspect most favorable to the plaintiff would have warranted a finding of these facts: A little after seven o’clock on a late July evening, on one of the principal streets in the town of Webster, the deceased, an elderly pedestrian, received mortal injuries by being struck by an automobile driven by the defendant. The street leads generally in an east and west direction. On its south side was the track of a street railway, between which and the north gutter of the street there was ample space for teams and vehicles to meet and'pass each other. The accident occurred about thirty feet easterly from the foot of a hill, straight up which westerly the street went about three hundred feet to its top .and thence onward. From the place of the accident an automobile might be seen a short distance beyond the top of the hill. An electric car going up the hill passed shortly before the accident, which occurred thirty or forty feet from the electric car. No vehicles other than the electric car and the automobile, and no persons aside from the deceased and those in the car and in the automobile, were in the neighborhood. The deceased came from the north side of the street, being opposite to that on which was the street railway track. Before stepping off the sidewalk preparatory to crossing the street, she looked both ways to see if any machine was coming and did not observe any. Then, as “ she put her foot on the street from the sidewalk,” she dropped tier house key and stooped to pick it up and was struck by the automobile moving at the rate of twenty miles an hour. There was evidence to. the effect that the deceased took “two steps from the curb” and that she was not “more than a foot or two from the sidewalk.” The defendant was not a skilful driver. A professional chauffeur was with him, who testified that they were coasting down the hill, that he saw the deceased upon the sidewalk and noticed her step from the sidewalk into the street, and that he told the defendant to “put on the brakes hard,” but instead, the defendant took off the brake.

Plainly, there wás evidence of negligence on the part of the defendant.

There was direct and inferential evidence sufficient to support a finding that the deceased was actively in the exercise of due care. Hudson v. Lynn & Boston Railroad, 185 Mass. 510. Hayes v. Boston Elevated Railway, 224 Mass. 303. Evidence to the effect that the deceased looked both ways before stepping off the sidewalk and did not see the automobile is not so clearly contradicted by the irrefutable facts as to require the conclusion that she looked negligently within the rule declared in Roberts v. New York, New Haven, & Hartford Railroad, 175 Mass. 296, Fitzgerald v. Boston Elevated Railway, 194 Mass. 242, and Pigeon v. Massachusetts Northeastern Street Railway, 230 Mass. 392, 396. The case at bar does not fall within that class. If the automobile was being driven at the rate of twenty miles an hour, it would traverse the distance between the place of the accident and the point where it first was within the possible field of vision of the deceased, when according to evidence she looked both ways and saw no vehicle, within a period of fifteen seconds or perhaps less. It hardly can be said that it was impossible according to known facts for the deceased, who was an elderly woman, to have looked up the hill and failed to see the automobile for the reason that it was not then in sight, and yet that it might have struck her as she was stooping over to pick up the key within two feet of the sidewalk. Active attention to her own safety did not require her to anticipate and guard against the danger that an automobile, driven at such speed as to reach a point in the highway opposite her within fifteen seconds, would run her down rather than avoid collision with her by using other parts of the broad highway. This is especially true in view of, St. 1917, c. 200, which requires every person operating a motor vehicle, upon approaching a pedestrian upon the travelled part of a way and not upon a sidewalk, to “ slow down and give a timely signal with his bell, horn or other device for signalling.” The inference might rationally have been drawn that the deceased was actively looking out for her own safety. Buoniconti v. Lee, 234 Mass. 73. Sarmento v. Vance, 231 Mass. 310. Booth v. Meagher, 224 Mass. 472. Creedon v. Galvin, 226 Mass. 140.

It is stated in the exceptions that leave was reserved under St. 1915, c. 185, to enter a verdict for the defendant in case it should be decided either by the Superior Court or by the Supreme Judicial Court that such a verdict ought to have been entered. Thereafter the judge, before whom the case was tried, allowed a motion of the defendant to enter verdict in accordance with the reservation. The allowance of that motion was error. The order allowing that motion is set aside and the original verdict of the jury is to stand. The contention of the plaintiff that a new trial be granted cannot be supported. Whether there would be otherwise necessity for a new trial under these circumstances need not be decided, because it is avoided by St. 1913, c. 716, § 2. The • powers conferred by that statute expressly are preserved by St. 1915, c. 185, § 2. See Bergeron v. Forest, 233 Mass. 392, 402, 403, Bothwell v. Boston Elevated Railway, 215 Mass. 467, 475, 476.

Exceptions sustained.

Verdict of jury to stand.

Judgment for plaintiff on the verdict.