O'Connor v. Hickey

• Decision Date: 16 September 1929
• Citation: 268 Mass. 454,167 N.E. 746
• Parties: O'CONNOR v. HICKEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

268 Mass. 454

167 N.E. 746

O'CONNOR

v.HICKEY.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 16, 1929.

Exceptions from Superior Court, Suffolk County; Christopher T. Callahan, Judge.

Action by Mary A. O'Connor, administratrix, against Arthur J. Hickey. Judgment for plaintiff, and defendant brings exceptions. Exceptions overruled.

S. P. Sears, of Boston, for plaintiff.

J. T. Pugh, of Boston, for defendant.

RUGG, C. J.

When this case was here before, 260 Mass. 110, 156 N. E. 838, it was settled that the issues of the due care of the plaintiff's intestate and the negligence of the servant of the defendant were questions of fact for the jury. In legal aspects material to those issues, the evidence on the present record is not essentially different from that at the former trial. It would be futile to review the evidence or repeat the discussion. Those issues are foreclosed in favor of the plaintiff.

The defendant has argued that the evidence is not sufficient to warrant a finding of actively intelligent and energetic attention to safety required in cases of this nature, relying in this connection upon Hudson v. Lynn & Boston Railroad, 185 Mass. 510, 521, 71 N. E. 66, and Bothwell v. Boston Elevated Railway, 215 Mass. 467, 470, 102 N. E. 665, L. R. A. 1917F, 167, Ann. Cas. 1914D, 275. That contention cannot be supported. It is not relevant to the facts of the case at bar. The presumption of due care created by G. L. c. 231, § 85, in any event is coextensive with the requirement as to due care expounded in the Hudson Case. That presumption was not inapplicable as matter of law to the case at bar. Mercier v. Union Street Railway, 230 Mass. 397, 403, 404, 119 N. E. 764. The case on this point is covered by the authority of King v. Weitzman (Mass.) 166 N. E. 711.

There was no error in the charge to the effect that the burden of proof of showing want of due care of the decedent was on the defendants. By G. L. c. 231, § 85, in all actions ‘to recover damages for injuries to the person or property or for causing the death of a person, the person injured or killed shall be presumed to have been in the exercise of due care, and contributory negligence on his part shall be an affirmative defence to be set up in the answer and proved by the defendant.’ Contributory negligence on the part of a person injured or killed through the negligence of another is want of due care in respect to the cause of the injury or death and is itself conduct having a share in bringing on the harm. Want of due care by the person injured, touching the cause of his injury resulting from the negligence of another, is contributory negligence. Due care and contributory negligence on the part of a person injured or killed through the negligence of another are correlative terms; one states his essential positive duty with reference to his own safety and the other his failure in performance of that duty; both imply conduct touching the proximate cause of his injury. They relate to the causal connection between his conduct and his injury, with respect to the tortious conduct of the defendant. Due care in this connection means that care for his own safety required by the law. Contributory negligence means violation of the duty to care for one's own safety, which exists at least in those cases where a person who has sustained an injury seeks to fasten liability for that injury upon some other person. The statement from Bergeron v. Forest, 233 Mass. 392, at page 399, 124 N. E. 74, 85, viz., ‘Negligence consists in doing or omitting to do an act in violation of a legal duty or obligation due to the person sustaining injury,’ upon which the defendant relies as drawing a distinction between due care and contributory negligence, does not support that distinction. That statement is equally descriptive of the contributory negligence of the plaintiff and of the positive negligence of a defendant. The conventional definition of due care as the kind and degree of care that persons of ordinary prudence would exercise in the same circumstances of place, time, and attendant conditions in its practical application to the trial of cases is not an abstraction. It is practical, specific, definite. It is descriptive of conduct with reference to the cause of faction on trial, not with reference to unrelated matters. It is conceivable that a plaintiff in an action for negligence might be wanting in due care with respect to an indifferent matter and yet in the exercise of due care with respect to the cause of the injury inflicted on him through the negligence of the defendant. Negligence which does not contribute to the injury is immaterial and irrelevant. Marble v. Ross, 124 Mass. 44, 48.

The contention of the defendant as stated in his brief is that contributory negligence ‘implies some act of the plaintiff in violation of some duty of plaintiff to defendant, which act co-operating with the defendant's negligence, or violation of his duty to the plaintiff, contributed to the accident.’ Possibly that contention interpreted in a highly technical sense may mean that violation of a duty owned by the plaintiff to the defendant, not actually causing or likely to cause injury to the defendant exercising due care, nevertheless is wanting in due care to the extent of having a causal connection with the injury to the plaintiff arising from negligent conduct of the defendant. If it means that, there are two fatal objections to it: (1) It is too refined to be of any practical value; (...