Arnold v. Colbert , 273 Mass. 161 ( 1930 )

Wait, J.

These two cases were tried together. The defendant contends that the material evidence failed to justify a finding of negligence on the part of the defendant, and required findings that the plaintiffs carelessly contributed to the accident, that consequently the trial judge was in error in refusing to direct verdicts for the defendant.

That evidence would sustain findings as follows: The defendant in driving his automobile and turning from Hereford Street to go west along Boylston Street, in Boston, struck and injured the plaintiffs as they were walking westerly across Hereford Street on the northerly crosswalk of Boylston Street and were within a step of the westerly curb. The crossing is forty or fifty feet wide. There was a street light at the corner. The hour was about 11:20 p.m. on October 18, 1927. A mist was falling. Before entering upon the crosswalk, both plaintiffs looked to left and to right, and did not see any motor vehicle approaching or moving within a block to the right of Boylston Street. They were in no hurry, but walked at a normal gait, Redmond on the right of Arnold. Arnold looked to his right until half or two thirds of the distance across, and then forward to prepare for stepping to the curbing. He saw no lights other than the parking lights on one, or, possibly, two, cars parked on the west side of Hereford Street north of Boylston. He saw no moving traffic. He did not see the defendant’s vehicle before it struck him. Nor did Redmond. They were struck behind and from the right. The defendant did not see them until after his car hit them. He estimated his speed at between ten and twelve miles per hour; and testified that he had slowed to permit a car to come from a passage beside a building near the corner and, when it did not enter Hereford Street, resumed his speed toward the crossing. He could not recall whether he had given a horn signal. His right hand wheels at the turn were “ eight inches or so ” from the westerly curb. Immediately after the accident, when the plaintiffs looked at the windshield they found the wiper motionless and the glass covered with mist. The lights dimmed as the machine slowed. The right hand headlight was bent by the collision.

No minute discussion is needed. This evidence falls far short of requiring the rulings held to be appropriate in the circumstances of Tognazzi v. Milford & Uxbridge Street Railway, 201 Mass. 7, Collins v. Boston Elevated Railway, 218 Mass. 284, Pigeon v. Massachusetts Northeastern Street Railway, 230 Mass. 392, and Walsh v. Boston Elevated Railway, 271 Mass. 477, cited by the defendant. Whether the plaintiffs were careless in failing to see the defendant’s car before it hit them, and whether the defendant was negligent in driving, on a misty night, with a clouded windshield, without sounding an alarm, at ten or twelve miles an hour, within a few inches of the curb in rounding a corner at a crossing, and in failing to see and avoid two pedestrians on the crossing close to the curb, manifestly were questions, not of law for the trial judge, but of fact for a jury.

Exceptions overruled.