Clark v. C.E. Fay Co.

• Decision Date: 09 December 1932
• Citation: 281 Mass. 240,183 N.E. 423
• Parties: CLARK v. C. E. FAY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

281 Mass. 240

183 N.E. 423

CLARK

v.C. E. FAY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 9, 1932.

Report from Superior Court, Suffolk County; F. B. Greenhalge, Judge.

Action by Patrick Clark against the C. E. Fay Company. On report from the superior court.

Judgment for plaintiff.

F. I. Tobin, of Boston, for plaintiff.

R. J. Coffin, of Boston, for defendant.

RUGG, C. J.

This is an action of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff while a pedestrian upon a public way by the negligence of a servant of the defendant in the operation of its automobile. It was conceded that the accident occurred at about six-thirty to seven o'clock in the evening of October 15, 1930; that it was raining at the time; that the defendant was the owner of the automobile which was being driven by its agent on its business; that the driver was duly licensed as an operator and the automobile was properly registered; and that the accident occurred at or near the intersection of East Brookline street and Shawmut avenue, in Boston. At that season of the year it was dark at the time. No contention is made that the lights of the automobile of the defendant were not lighted.

The testimony of the plaintiff was in effect that while walking on the sidewalk on Shawmut avenue, when he reached the corner of East Brookline street, he stopped, looked to his ‘left and right and up and down, and couldn't see any car coming; that he then looked to the right and saw a car there at a standstill, not in motion’; that he then stepped off into the street and ‘I got over middle ways on the street * * * maybe a little further than middle ways, and then I looked again, and I saw this car coming by close to me, about a foot * * * near me, and then of course, when I saw the car coming so close to me, I did my best. I hurried as quick as I could * * * to get out of the way, and I couldn't get out of the way and it struck me.’ The testimony of the driver of the automobile was that, having driven from Harrison avenue on Brookline street so far as Shawmut avenue, he came to a stop; ‘I had the windows closed; windshield wiper working; because it was raining very hard, and the windows were pretty well misted. I put it into first speed; I started across the street and I threw it into second as I got to the other corner; then 5 or 6 feet from the corner, just as I started to come in, I had seen something; looked like a shadow. Just what it was at that particular moment, I didn't realize, and I stopped. As I stopped I hit something or struck whatever it was. When I got out, I had seen this gentleman * * * on the ground. * * *’ He also testified ‘that he had seen the shadow on his left halfway between his bumper and another car which was three or four feet ahead of him on his right, up against the curbstone near the corner, that he was about four or five feet beyond the corner when he struck the plaintiff.’ Further testimony concerning the weather was that it was ‘Drizzling * * * it was raining, kind of a heavy mist coming down.’ These two were the only witnesses whose testimony is reported and it has been stated in full so far as now material.

The evidence is meagre; consequently the case is very close on the questions of law presented. The governing principles are plain. It would serve no useful purpose to restate or amplify them. We think that it could not have been ruled as matter of law that the defendant had sustained the burden which rested on it of proving that negligence on the part of the plaintiff contributed to his injury. O'Connor v. Hickey, 268 Mass. 454, 167 N. E. 746;...