Pawloski v. Hess

• Decision Date: 16 October 1925
• Citation: 253 Mass. 478,149 N.E. 122
• Parties: PAWLOSKI v. HESS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 478

149 N.E. 122

PAWLOSKI

v.HESS.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 16, 1925.

Exceptions from Superior Court, Worcester County; F. J. Macleod, Judge.

Action of tort by Leo Pawloski, p. p. a., against H. W. Hess, to recover for personal injuries while a traveler on a public highway for alleged negligence or wanton misconduct of defendant in driving a motor vehicle. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

See, also, 144 N. E. 760, 35 A. L. R. 945.

1. Municipal corporations k706(5)-Evidence held to authorize finding pedestrian exercised due care.

Evidence held to authorize finding that pedestrian, run down in street by automobile, was in exercise of due care.

2. Municipal corporations k706(6)-Negligence of automobile driver approaching crossing, held for jury.

Evidence of negligence of automobile driver as to speed of automobile in approaching cross-walk of street, and failure to sound horn, as provided by G. L. c. 90, ss 14, 17, held for jury.

3. Constitutional law k249, 309(2)-Process k85-Action against nonresident defendant by compliance with statute held not to infringe his constitutional rights.

Action against nonresident defendant, without making personal service, but by complying with St. 1923, c. 431, s 2, as to service, held not to infringe rights of defendant secured by Const. U. S. Amend. 14, s 1.

H. J. Meleski, of Worcester, for plaintiff.

R. Proctor, of Boston, for defendant.

RUGG, C. J.

This is an action of tort brought to recover compensation for personal injuries received by the plaintiff through being struck by an automobile owned by the defendant and operated by him or by some one for whose acts he was responsible. The injury occurred at the intersection of two streets in Worcester at about noon of a pleasant September day and plaintiff was on his way to a store to make a purchase. At that time he was between 9 and 10 years of age. He testified:

‘When I left the sidewalk I couldn't see any automobile. When I first saw the automobile it was so near me that I could not prevent getting hit. I do not know how the accident happened, other than that the automobile his me just after I left the sidewalk.’

An eyewitness testified that the plaintiff was walking about [253 Mass. 480]50 feet in front of him, on the sidewalk, when the plaintiff stepped out into the street toward a store; that the speed or direction of the automobile, ‘proceeding at about 20 to 25 miles per hour in the trolley car tracks,’ was not changed until after it hit the plaintiff; that no horn on the automobile was sounded as it approached the intersection of the streets or at any time in the vicinity; that there was a curve in the street from the direction from which ‘the automobile came, and although I was facing the car I did not see it until it was about 10 yards from me, and it was then nearer the plaintiff that it was to me. When the plaintiff left the sidewalk I saw no car in the street, and he had only taken four or five steps when he was struck.’ This was all the evidence. No testimony was introduced by or in behalf of the defendant.

[1] A finding was warranted that the plaintiff was in the exercise of due care. Tripp v. Taft, 219 Mass. 81, 106 N. E. 578;Beale v. Old Colony Street R. Co., 196 Mass. 119, 81 N. E. 867;Kaminski v. Fournier, 235 Mass. 51, 126 N. E. 279;Rasmussen v. Whipple, 211 Mass. 546, 98 N. E. 592;Bengle v. Cooney, 243 Mass. 10, 136 N. E. 812.

[2] There was evidence of negligence, causative of the injury, on the part of the one in control of the automobile. Its speed and the failure to sound its horn may have been found to be violative of G. L. c. 90, §§ 14, 17, in particulars conducive to the injury, and hence evidence of negligence on that account, as well as intrinsically...