Bowser v. Wellington

• Decision Date: 07 March 1879
• Citation: 126 Mass. 391
• Parties: John W. Bowser v. Homer Wellington
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

126 Mass. 391

John W. Bowser v. Homer Wellington

Supreme Court of Massachusetts

March 7, 1879

Suffolk. Tort for personal injuries occasioned to the plaintiff in being run over by a horse and wagon driven by the defendant, while crossing Devonshire Street in Boston. Answer, a general denial.

At the trial in this court, before Soule, J., the plaintiff testified that he was about sixty-four years old; that he was on his way to Faneuil Hall Market about eleven o'clock in the forenoon; that he walked down Cornhill across Washington Street, and kept along the sidewalk to Devonshire Street that he had taken, perhaps, four steps in crossing Devonshire Street when he was suddenly struck down from behind by a horse and wagon driven by the defendant; that he did not see the horse and wagon approaching, nor hear them; that they appeared to be moving with great swiftness, as he inferred from the violence with which he was struck; that he thought the horse or shaft struck him first, as the horse swung around the corner; and that the wagon made no noise, because the street had been recently covered.

Flora S. Russell testified that she saw the accident; that she was walking down Cornhill, a short distance behind the plaintiff and on the same sidewalk with him, and was about to cross Devonshire Street when the accident occurred; that the plaintiff was walking in the ordinary way in which any person would walk; and that all she could say was that a horse and wagon came very rapidly and ran over the plaintiff before he was half across the street, but she could not say where they came from.

The defendant testified that he drove slowly down Brattle Street across Cornhill, and slackened his speed to a walk; that he saw the plaintiff crossing the street some twenty feet before he reached him; that he thought there was room to pass behind him, and should have succeeded in doing so, but the plaintiff staggered back against his horse, striking the horse about midway the length of his body; and that there was no vehicle or horse between his horse and the plaintiff after he first saw the plaintiff.

There was no evidence as to whether the plaintiff looked up or down the street before or while crossing. There was contradictory evidence as to whether the plaintiff was intoxicated, or not, at the time of the accident, and staggered back.

This was all the evidence on the question whether the plaintiff used due care; and the...