Burns v. Oliver Whyte Co., Inc.

Decision Date02 January 1919
Citation231 Mass. 519
PartiesMARY J. BURNS, administratrix, v. OLIVER WHYTE COMPANY, INCORPORATED.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

November 20, 25, 1918.

Present: RUGG, C J., LORING, BRALEY, PIERCE, & CARROLL, JJ.

Negligence Contributory, Causing death, In use of highway.

At the trial of an action by the administratrix of the estate of a teamster for causing the death of the plaintiff's intestate by running over him with a motor truck after the enactment of St. 1914 c. 553, there was evidence that, at the time when he was run into, the teamster, having loaded a wagon with crushed stone in the yard of a contractor, with his back to a public way was leading the horses of the team by the bridles, because they were restless, from weighing scales into the street that just as he, at the horses' heads, had about reached the nearer gutter of the public way, he was struck by the motor truck, which was approaching from his right without warning and at the rate of about twenty miles an hour and was "hugging" the gutter on that, its right, side of the way, that he was pulled from the horses, turned around, and was caused to fall under the right hand rear wheel of the truck and was killed. Held, that the evidence did not warrant a ruling that the burden of proving contributory negligence, placed on the defendant by St. 1914, c. 553, had been sustained, and that a finding that the plaintiff's intestate was in the exercise of due care was warranted.

At the trial of the action above described, there was further evidence that the day was clear, that the driver of the defendant's motor truck had a clear view of the plaintiff's intestate for from five hundred to six hundred feet, that the truck was running at a speed of twenty miles an hour and that no warning was given of its approach, and it was held that a finding that the defendant's driver was negligent was warranted.

TORT, by the administratrix of the estate of Edward L. Kelley, for his conscious suffering and death alleged to have been caused by negligence of employees of the defendant in running over him with a motor truck on Mystic Avenue in Somerville on November 21, 1916. Writ dated March 5, 1917.

In the Superior Court the case was tried before J. F. Brown, J. A verdict was ordered for the defendant on the count for conscious suffering. At the close of the evidence the defendant moved for a verdict on the count for causing death on the ground that on all the evidence the plaintiff was not entitled to recover. The motion was denied. The jury found for the plaintiff on that count, in the sum of $6,833. The defendant alleged exceptions.

H. S. Avery, for the defendant, submitted a brief.

R.

W. Frost, for the plaintiff.

BRALEY, J. The action is tort for conscious suffering and death of the plaintiff's intestate who was struck and instantly killed by a motor truck operated by an employee of the defendant. A verdict for the defendant was ordered on the count for conscious suffering, but, the jury having found for the plaintiff on the count for death, the case is before us on the defendant's exceptions to the refusal of the trial judge to rule that on all the evidence the plaintiff as matter of law was not entitled to recover.

The jury on the record would have been warranted in finding the following facts: The plaintiff's intestate, a teamster, had driven his double team into the yard of a firm of contractors who were engaged in crushing stone, and had stopped under the hopper of the crusher where his wagon was loaded with crushed stone. He then drove on to the scales located in the contractors' yard off the side of the public way to have the load weighed. The crusher was in operation and as the horses started off the platform of the scales they appeared to be restless and the intestate thereupon while standing on the ground "got hold of his pair of bridles, one in each hand" and began walking backward toward the public way leading the horses forward, and as "he got out just about in the gutter" the motor truck came down "hugging" the edge of the gutter on that same side of the street and, without hitting the horses, "picked him right off the end of the pole," "turned him under the truck, and the right hind wheel went over his head."

It is contended there was no evidence of his due care. The count for death is under R.L.c. 171, Section 2, as...

To continue reading

Request your trial
18 cases
  • Barnes v. Berkshire St. Ry. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 7 November 1932
    ...of the situation. Lemay v. Springfield Street Railway, 210 Mass. 63, 67, 96 N. E. 79,37 L. R. A. (N. S.) 43;Burns v. Oliver Whyte Co., Inc., 231 Mass. 519, 121 N. E. 401;Fitch v. Bay State Street Railway, 237 Mass. 65, 129 N. E. 423, 15 A. L. R. 234;Pierce v. Hutchinson, 241 Mass. 557, 564,......
  • Shapiro v. Lyon
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 27 November 1925
    ...432, 143 N. E. 307. The evidence in the case was insufficient to support the defense of contributory negligence. Burns v. Oliver Whyte Co., Inc., 231 Mass. 519, 121 N. E. 401;Powers v. Loring, 231 Mass. 458, 121 N. E. 425. Apart from the Statute of 1914, c. 553, § 1, now G. L. c. 231, § 85,......
  • White v. Kane
    • United States
    • Wisconsin Supreme Court
    • 6 February 1923
    ...126 N. E. 369;French v. Mooar, 226 Mass. 173, 115 N. E. 235;Seabut v. Ward Baking Co., 231 Mass. 339, 121 N. E. 23;Burns v. Oliver Whyte Co., 231 Mass. 519, 121 N. E. 401; also Knapp v. Barrett, 216 N. Y. 226, 110 N. E. 428;Harker v. Gruhl, 62 Ind. App. 177, 111 N. E. 457. It follows theref......
  • Byrne v. Dunn
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 3 December 1936
    ... ... Miller, 231 Mass. 243, 245, 120 N.E. 655; Burns v ... Oliver Whyte Co., Inc., 231 Mass. 519, 521, 121 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT