Butler v. Curran

• Decision Date: 29 December 1938
• Citation: Butler v. Curran, 302 Mass. 1, 18 N.E.2d 340 (Mass. 1938)
• Parties: BUTLER v. CURRAN (two cases).
• Court: Supreme Judicial Court of Massachusetts

302 Mass. 1

18 N.E.2d 340

BUTLER

v.CURRAN (two cases).

Supreme Judicial Court of Massachusetts, Plymouth.

Dec. 29, 1938.

Exceptions from Superior Court, Plymouth County; David F. Dillon, Judge.

Two actions by John P. Butler, p. p. a., against T. Beatrice Curran and against William Curran for injuries received by the plaintiff when truck while riding a bicycle by an automobile operated and owned by the defendants. The trial judge directed verdicts for the defendants on the ground that the plaintiff's violation of law was a proximate cause of his injury, and the plaintiff brings exceptions.

Exceptions sustained and judgment entered for plaintiff. D. J. Triggs and J. D. O'Connell, both of Marlboro, for plaintiff.

H. F. Hathaway, of Taunton, for defendants.

QUA, Justice.

These are actions against the operator and the owner, respectively, of an automobile that collided with a bicycle ridden by the plaintiff on Crescent Street in Brockton in the late afternoon of January 27, 1932.

An auditor found that the defendant operator was negligent, and that the plaintiff, who at the time of the accident was twelve years old, was in the exercise of due care for a person of his age. These findings remained evidence in the case, although other evidence was introduced at the trial. They made it impossible rightly to direct verdicts for the defendants on either of these issues. G.L.(Ter.Ed.) c. 221, § 56; Cook v. Farm Service Stores, Inc., Mass., 17 N.E.2d 890.

But the auditor also found that the plaintiff violated the law of the road, G.L.(Ter.Ed.) c. 89, § 1, which required him upon meeting the automobile seasonably to turn to the right of the middle of the street, and also G.L. (Ter.Ed.) c. 85, § 13, which required him to have a light attached to his bicycle, and that these violations were the direct and proximate cause of the accident, and found for the defendant in each case. The question principally argued is whether the judge could rightly direct verdicts for the defendant on the ground that the plaintiff's violation of law was a proximate cause of his injury.

The cases were substantially retried before the jury. A brief outline of the facts which could have been found from evidence at the trial is this: Crescent Street was a business street, with a single car track approximately in the center. It ran east and west. The plaintiff turned into Crescent Street at an intersection west of the point of the accident and proceeded in an easterly direction on the southerly side of the street. He intended to stop at a heating and steamfitting establishment on the northerly side. As he approached his destination, he turned to his left diagonally across the street in a northeasterly direction toward a driveway at the entrance to the premises he intended to visit. When he reached the driveway where he ‘was going to turn in,’ he found it blocked by an oil truck that was parked half on the sidewalk and half in the street. Automobiles were closely parked on that side of the street in each direction from this truck. The plaintiff, therefore, continued easterly on his left hand side of the street, keeping close to the parked vehicles. An automobile going west, ‘straddling the northerly rail of the track,’ passed him safely. About sixty-five feet behind that came the automobile driven by T. Beatrice Curran, hereinafter called the defendant, also going toward the west, but entirely north of the northerly rail. The plaintiff ‘proceeded along as near as possible’ to the parked automobiles. The defendant was going twenty-five to thirty miles an hour, and the plaintiff was going about five miles an hour. The defendant ‘came to the north gradually; to where * * * [the plaintiff] was,’ and the collision occurred just as the plaintiff was passing a large truck parked on his left. There was evidence that, although there were street lights, the defendant did not see the plaintiff until he ‘appeared at her side’ and struck her fender.

On the whole evidence,...