Avery v. Forand
| Citation | 200 N.E. 926,294 Mass. 232 |
| Parties | AVERY v. FORAND. |
| Decision Date | 02 April 1936 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middlesex County; Collins, Judge.
Action of tort by Bridget T. Avery, administratrix of a decedent's estate, against Edward Forand. A verdict was ordered for defendant, and plaintiff brings exceptions.
Exceptions sustained, and judgment entered for plaintiff.
M. G. Rogers and M. Barlofsky, both of Lowell, for plaintiff.
J. H. Gilbride, of Lowell, for defendant.
The plaintiff's intereste was employed on a farm by one Houghton, who owned a pair of old, slow quiet horses, familiar with automobiles both on the highway and on the farm. They were accustomed to start of their own accord only when the reins were picked up.
On the rainy evening of March 31, 1934, the defendant's automobile had been mired for several hours. The plaintiff's intestate, at the defendant's request, went to give help with the pair of horses harnassed to a cart. The cart was backed up to the front of the automobile and fastened to it by a chain, so that the two vehicles were ten or twelve feet apart. One pull by the horses, with the assistance of the engine, failed to drag the automobile out of the mire. The plaintiff's intestate got off the cart, dropped the reins, and came back to alter the fastening of the chain. The defendant, thinking to help him, started the engine. The horses were frightened and started up, the plaintiff's intestate ran forward to seize the reins, and the horses turned to the left, overturning the cart, which fell on the plaintiff's intestate, causing injuries from which he died.
Upon evidence tending to prove the foregoing facts, in this action for negligence causing conscious suffering and death (G.L.[Ter.Ed.] c. 229, §§ 5, 6), the judge, subject to the plaintiff's exception, ordered a verdict for the defendant. It was stipulated, however, that if the direction of the verdict was error, judgment is to be entered for the plaintiff in the sum of $2,500.
The defendant knew nothing of the temper and disposition of the horses. He had received no instruction to start the motor at a time when the horses were not ready to pull. He knew that the driver had no control of them at the time. It could have been found that the noise of the engine caused the horses to start. We think that the defendant could have been found negligent in undertaking at such a time what appears from the evidence to...
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