Cairney v. Cook

• Decision Date: 26 February 1929
• Citation: 266 Mass. 279
• Parties: JOHN CAIRNEY v. HAROLD COOK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 279

JOHN CAIRNEY v. HAROLD COOK.

Supreme Judicial Court of Massachusetts, Middlesex.

February 26, 1929

January 8, 1929.

Present: RUGG, C.

J., CROSBY CARROLL, & SANDERSON, JJ.

Negligence Contributory, Motor vehicle. Evidence, Of failure to sound horn.

At the trial of an action by a boy eight years of age against the driver of a motor vehicle for personal injuries received when the plaintiff was struck by the vehicle, there was evidence that the plaintiff was walking fast on a sidewalk, looking straight ahead, across its intersection with an alley entering from the plaintiff's left, on which the defendant's vehicle was approaching; that obstructions hid the vehicle from the plaintiff's view and the plaintiff from the defendant's view; that the vehicle was four feet wide and was proceeding at the rate of from five to seven miles an hour in the middle of the alley, which was ten or twelve feet wide; that when the plaintiff saw the vehicle he took two steps forward and was struck by its left front mudguard and thrown into the gutter, and that the vehicle stopped about two feet from where the plaintiff lay. Companions of the plaintiff, walking a few feet behind him, testified that they heard no horn sounded by the driver of the motor vehicle. The defendant testified that he knew that at that hour children would be going home from school. The judge, subject to an exception by the plaintiff, ordered a verdict for the defendant. Held, that

(1) The testimony by the plaintiff's companions warranted a finding that the defendant did not sound a horn;

(2) Apart from the provisions of G.L.c. 231, Section 85, a finding would have been warranted that the plaintiff was in the exercise of such care as might reasonably be expected of a child of that age;

(3) Findings were warranted that the defendant was negligent in not giving any warning of his approach or taking any precautions to ascertain whether anyone on the sidewalk was about to cross the alley, or in not seeing the plaintiff and then driving his vehicle to the right behind the plaintiff and thereby avoiding striking him, or in not seeing the plaintiff and stopping before striking him;

(4) The action should have been submitted to the jury.

TORT by a boy eight years of age for personal injuries received when he was struck by a motor vehicle driven by the defendant. Writ dated July 8, 1926.

In the Superior Court, the action was tried before Dillon, J. Material evidence is stated in the opinion. At the close of the evidence, the judge ordered a verdict for the defendant. The plaintiff alleged exceptions.

S.P. Sears, (E.K. Nash with him,) for the plaintiff. D.H. Fulton, for the defendant.

CROSBY, J. The plaintiff, a boy eight years of age, was struck and seriously injured while travelling on a sidewalk on Hawkins Street, a public way in Somerville, by a motor vehicle operated by the defendant out of an alley intersecting the sidewalk. There was evidence that as a result of the accident his hearing is totally destroyed. He did not testify at the trial. At the close of the evidence the trial judge on motion of the defendant directed a verdict in his favor, subject to the plaintiff's exception.

There was evidence that while on his way home from school the plaintiff passed a building which abutted the sidewalk on his left; that the alley runs to the rear of the building; that at the corner of the building and extending to the side of the alley there was a plaintiff which was too high for the plaintiff to see over that as he approached the alley he was unable to obtain a view of it or of an approaching automobile until he had passed the platform. There was further evidence that the sidewalk from the curb to the platform was six or seven feet wide and that the alley was from ten to twelve feet wide.

Two of the plaintiff's witnesses were his schoolmates who were walking a few feet behind him as he started to cross the alley. These boys testified that the plaintiff was walking fast, looking straight ahead, and when he was about halfway across the alley the motor vehicle, driven by the defendant, reached the sidewalk; that the plaintiff saw it and took two steps forward to avoid it but was struck by the front left mudguard and knocked into the gutter; that they heard no horn sounded by the driver of the motor vehicle; and that it stopped about two feet from where the boy was lying.

The defendant testified that he was familiar with the alley and the place of the accident; that the plaintiff was not tall enough to see over the top of the platform; that at the hour when the accident occurred he knew children would be going home from school and there were many children living in that vicinity that in coming out of the alley he stopped, for about a second, about seven feet from the corner of the building and threw the car into low speed, and did not stop again until he came in contact with the plaintiff; that when he was seven feet back from the corner of the building he could not see the plaintiff coming along the sidewalk, and did not know whether he was around the corner of the platform or not; that as he...