Byrne v. Dunn

Decision Date03 December 1936
Citation296 Mass. 184,5 N.E.2d 10
PartiesBYRNE v. DUNN.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Exceptions from Superior Court, Middlesex County; Brogna, Judge.

Action of tort by Louise Byrne, p. p. a. against Bernard V. Dunn. Verdict for plaintiff in sum of $3,000. On defendant's exceptions.

Exceptions overruled.

H. P Brennan, of Lowell, for plaintiff.

J. G Bryer and M. F. Wingersky, both of Boston, for defendant.

QUA Justice.

On January 11, 1934, about 10:15 P. M. the plaintiff, while walking with a companion, one Mary Golden, easterly on their right hand side of Lakeview Avenue in Lowell, was struck from behind and injured by an automobile which was being driven by the defendant in the same direction.

There was evidence for the plaintiff that the two girls had been walking in the part of the way used by vehicles for about five minutes because of ice upon the sidewalk; that the ice extended out from the right curbstone to within three or four feet of the nearest rail of the double car tracks; that they walked in this space between the ice and the rail; that the street was a lighted highway and that the windows of stores on one side were lighted. Mary Golden testified for the plaintiff that she looked behind her and saw the automobile approaching about one hundred feet away that she told the plaintiff of this fact; that two or three minutes later she saw the automobile about five feet directly behind herself and the plaintiff, ‘ almost on top of us'; that she ‘ made for the sidewalk to her right, grabbed the plaintiff who broke away from her, and who ran toward the middle of the street two or three steps out to about the first or most southerly car rail,’ where the automobile struck the plaintiff; and that she heard no horn from the automobile.

The plaintiff herself testified that she did not look behind when Mary Golden first informed her of the approach of the automobile; that Mary Golden again spoke to her telling her to look out and she then turned around and saw an automobile. There was also evidence that after the accident the defendant said that he was going about twenty-five or thirty miles an hour; that he saw the two girls walking in the road; that he thought that he could stop but he got too close and when he went to stop he skidded and struck Louise’ ; that he was driving on ice and she was walking on ice; and that it was ‘ just one of those things, an accident,’ without fault of either party. The defendant rested at the conclusion of the plaintiff's evidence. It was agreed at the argument that the plaintiff was of such age and capacity that she was bound to use the care of an adult.

On this evidence the judge could not properly have directed a verdict for the defendant. The plaintiff was within her rights in walking in the part of the street used by vehicles. Booth v. Meagher, 224 Mass. 472, 113 N.E. 367; Emery v. Miller, 231 Mass. 243, 120 N.E. 655. The jury were not obliged to accept the defendant's contention that the plaintiff suddenly ran from a place of safety to a place of danger in front of the defendant's automobile. They could take the view that the plaintiff's position in the street had been rendered unsafe by the defendant's rapid approach and that the plaintiff ran in an instinctive effort to escape. Emery v. Miller, 231 Mass. 243, 249,120 N.E. 655. The case is therefore distinguishable from Stafford v. Jones (Mass.) 198 N.E. 745, and other cases cited by the defendant. There was ample evidence of the defendant's negligence in not taking adequate and timely means to avoid hitting the plaintiff, whom he could see walking in the street, before he skidded, if he did skid. Mulroy v. Marinakis, 271 Mass. 421, 171 N.E. 670; Carbonneau v. Cavanaugh, 290 Mass. 139, 194 N.E. 724; Hall v. Shain (Mass.) 197 N.E. 437; Arnold v. Brereton, ...

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