Brown v. Henderson

• Decision Date: 15 February 1934
• Citation: 285 Mass. 192,189 N.E. 41
• Parties: BROWN v. HENDERSON (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

285 Mass. 192

189 N.E. 41

BROWN

v.HENDERSON (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 15, 1934.

Exceptions from Superior Court, Suffolk County; E. B. Bishop, Judge.

Actions of tort by George H. Brown against Alexander Henderson and against Carrie N. Henderson. Verdict for plaintiff in each case, and defendants bring exceptions.

Exceptions overruled.

J. S. McCann, of Boston, for plaintiff.

A. S. Allen, of Boston, for defendants.

RUGG, Chief Justice.

These are actions of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff, while a pedestrian crossing a street in Boston, through being struck because of the negligence of the female defendant (hereafter called the defendant) in operating an automobile owned by the other defendant. The plaintiff, the defendant and one other witness testified in considerable detail as to the circumstances of the accident. In some respects there was irreconcilable conflict between the testimony of the defendant and that of the other two eyewitnesses. There was evidence sufficient to support a finding of negligence of the operator of the automobile and of contributory negligence of the plaintiff. The cases were submitted to the jury and resulted in verdicts for the plaintiff. At the close of the evidence the defendants requested these instructions: ‘(2) There is no presumption that the plaintiff was in the exercise of due care. (3) Since all of the circumstances relating to the plaintiff's conduct are in evidence, there is no presumption that he was in the exercise of due care.’ These requests were not granted. The instructions, so far as material to these exceptions, were in these words: ‘There is a presumption that every person is in the exercise of due care * * *. When evidence is introduced * * * then the presumption fades away and the actual evidence * * * will control. While Mr. Brown is presumed to have been in the exercise of due care, when the evidence comes in as to what he was doing, whether he was doing what a reasonably prudent person would do in crossing a thoroughfare which is traveled to the extent which this is, then it is for you to say, bearing in mind, of course, all the time the presumption whether those facts show that he was not in the exercise of due care, and if he was not in the exercise of due care in whatever he did * * * then he cannot recover. * * * And if he was in the slightest degree careless, negligent, no matter what his injuries may have been, no matter how negligent the person who struck or hit him or did other injury to him may have been, he cannot recover. * * * But the burden of showing that he was not in the exercise of due care rests upon the defendant; whereas, the burden of showing negligence on the part of the defendant rests upon and is with the plaintiff.’ Counsel for the defendant then excepted to the portion of the charge to the effect that the jurors ‘were to bear the presumption in mind all the time, also that the presumption does not disappear until overcome by evidence.’ Thereupon the trial judge said: ‘I will instruct you on presumption again. A presumption is not evidence; it is merely a rule in reference to evidence; and if there is no evidence as to the due care in this case of Mr. Brown, then the presumption controls. When evidence is introduced then you are to consider the evidence. If you believe the evidence the presumption disappears; but just because somebody has said something and you do not believe a word of that evidence the presumption would control.’ The defendants saved exceptions to ‘that last’ and to the refusal to give their requests.

It is provided by G. L. (Ter. Ed.) c. 231, § 85, that ‘In all actions, civil or criminal, to recover damages for injuries to the person or property or for causing the death of a person, the person injured or killed shall be presumed to have been in the exercise of due care, and contributory negligence on his part shall be an affirmative defence to be set up in the answer and proved by the defendant.’ This section, which originated in St. 1914, c. 553, made an important change in our law. This section joins two distinct propositions or rules of practice to be observed in the trial of the specified classes of actions. The first part creates a presumption of due care on the part of the person injured or killed. The second part makes the contributory negligence of such person an affirmative defence to be pleaded and proved. Both these propositions were new in the law of this Commonwealth. It was said respectingthis statute in Duggan v. Bay State Street Railway, 230 Mass. 370, 378, 119 N. E. 757, 760, L. R. A. 1918E, 680: ‘The presumption of due care created by the statute is not itself evidence. It is a simple rule to which resort is had when there is a failure of evidence. A presumption ordinarily is not evidence, but is a rule about evidence. * * * ‘Presumptions are not indulged to supply the place of facts; they are never...