Bengle v. Cooney

• Decision Date: 17 October 1922
• Citation: 136 N.E. 812,243 Mass. 10
• Parties: BENGLE v. COONEY (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 10

136 N.E. 812

BENGLE

v.COONEY (two cases).

Supreme Judicial Court of Massachusetts, Berkshire.

Oct. 17, 1922.

Exceptions from Superior Court, Berkshire County; William Cushing Wait, Judge.

Two actions by Rosanna Bengle, by her next friend, and by Oswald G. Bengle against John M. Cooney, for personal injuries sustained by the minor plaintiff and for consequential damages suffered by the other plaintiff, her father. Directed verdict for defendant, and plaintiffs bring exceptions. Exceptions sustained.

Cummings & Rosenthal, John B. Cummings, and James M. Rosenthal, all of Pittsfield, for plaintiffs.

Frederick M. Myers, of Pittsfield, for defendant.

CARROLL, J.

Rosanna Bengle, hereafter called the plaintiff, a child about six years and eleven months old at the time of the accident, was struck and injured by an automobile driven by the defendant. The plaintiff in the second case, her father, sues for consequential injuries.

The collision occurred at the corner of Brown and Tyler streets, Pittsfield, September 3, 1920. The plaintiff, with Francis Barry (thirteen years of age) and two other children, was going in a westerly direction on the northerly sidewalk of Tyler street. At the intersection of the two streets, on the northerly side of Tyler near the easterly side of Brown, and resting on the crosswalk, there was a concrete mixer. The defendant, driving the automobile at the rate of four to six miles an hour in an easterly direction along Tyler street, turned into Brown street. Rosanna was on the crosswalk a short distance west of the concrete mixer when the collision occurred. There was a conflict of evidence on the question whether the defendant gave any signal ‘with his bell, horn, or other device for signaling.’ The jury viewed the premises and at the close of the evidence the trial judge directed a verdict for the defendant in each case.

[1][2][3] There was some evidence of the defendant's negligence and the case should have been submitted to the jury. The plaintiff was on a crosswalk where pedestrians might be expected. There was evidence that the defendant's view was obstructed and if he turned into this intersecting street without giving a signal of his approach by blowing a horn or otherwise, the jury could say that he was negligent. There was positive evidence that the horn was blown, but this was disputed, and one witness who saw the automobile approaching and heard the engine, testified that she heard no blowing of any horn or whistle. The jury could have found that had the horn been blown the witnesses for the plaintiff would have heard it, and that the failure to give the signal contributed to the accident. Howard v. New York, New Haven & Hartford R. Co., 236 Mass. 370, 373, 128 N. E. 422;Prendergast v. Boston Elevated Railway, 232 Mass. 409, 411, 122 N. E. 318.

[4] By St. 1917, c. 200, see now G. L. c. 90, § 14:

‘Upon approaching a pedestrian who is upon the travelled part of any way and not upon a sidewalk, or where the operator's view is obstructed either upon approaching an intersecting way, or a curve or corner in a way, every person operating a motor vehicle shall slow down and give a timely signal with his bell, horn or other device for signaling.’

Weighing all the evidence, the jury could have found that the defendant gave the signal required by law, and that he was in no respect negligent, but the question was for the jury to determine....