Dirsa v. Hamilton

• Decision Date: 28 October 1932
• Citation: 280 Mass. 482,182 N.E. 844
• Parties: DIRSA v. HAMILTON (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 482

182 N.E. 844

DIRSA

v.HAMILTON (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 28, 1932.

Exceptions from Superior Court, Worcester County; Daniel T. O'Connell, Judge.

Actions by John Dirsa and by Ruth Dirsa. p. p. a., against Wilbert D. Hamilton. Verdicts for plaintiffs, and defendant brings exceptions.

Exceptions overruled.

W. W. Buckley, of Southbridge, and T. E. Marshall, of Worcester, for plaintiffs.

J. F. McGrath, of Worcester, for defendant.

PIERCE, J.

These cases are actions of tort for personal injury sustained by the minor plaintiff, and for consequential damages sustained by her father, when Ruth Dirsa came in collision with a motor vehicle operated by the defendant on April 11, 1929, on Lafayette Street in Worcester. The cases were tried to a jury and all material evidence is stated in the bill of exceptions. At the conclusion of all the evidence the defendant filed motions in writing that the jury be directed to return a verdict for the defendant in each case. The judge denied the motions and the defendant duly excepted. The jury found for the plaintiff in each action, and the cases are before this court on the defendant's exceptions.

It was agreed between counsel ‘that the entire street [Lafayette Street] is forty-five feet wide, including sidewalks and that each sidewalk is seven and one-half feet wide and that from the curb on the southerly side of the street to the edge of the sidewalk on the northerly side (there being no curb there) is thirty feet.’

The evidence in its aspect most favorable to the plaintiffs' contention warranted a finding of the following facts: The accident happened at about 7 p. m., April 11, 1929, at a point about fifty feet westerly from the intersection of Washington and Lafayette streets, and the minor plaintiff (hereinafter referred to as the plaintiff) was picked up about ten feet from the southerly curb and nearly opposite her home at No. 15 Lafayette Street. Lafayette Street runs from Washington Street in a westerly direction, is a main thoroughfare and much used by automobiles, and at the time of the accident the road surface was dry. The evening was dusky, tending to darkness, but objects and people could be distinguished from some distance. The automobile of the defendant and that of two policemen who witnessed the accident were lighted. Immediately before and at the time of the accident the only traffic in Lafayette Street were the defendant's automobile coming easterly, the policeman's automobile entering Lafayette Street and going westerly, and a truck about seven feet wide facing easterly which was parked about six inches from and parallel to the southerly curb; other than this parked truck no object interfered with the view in the street in either direction.

The wife of the defendant testified, and the jury could find, that she was sitting on the right hand side in the front seat of the automobile; that when the automobile was forty-five to sixty feet from the point of the accident she saw some children on Lafayette Street; that the automobile was then stopped; that as it was started up she saw a truck on her right hand side of the street, and two or three children playing on the sidewalk near it; that before the accident she saw the plaintiff standing on the outside of the northerly sidewalk talking with two other children; that she saw the plaintiff start across the street slowly and then start to run; that her husband's automobile had not reached the parked truck when she first saw the plaintiff but was about five feet away; that the plaintiff ‘ran diagonally with her head dropped,’ and was hit by the left hand side of the automobile; that there were no other vehicles in the street on the left hand or northerly side of the street except the automobile of the policeman.

The defendant testified, in substance, and the jury could find therefrom, that he knew the neighborhood where the accident occurred; that it was a tenement district in which there were a great many children; that he had been on Lafayette Street fifty or sixty times before the accident occurred; that on the day of the accident he stopped at Scott Street to allow children playing in the street to pass, and further along he saw other children playing around a truck and he slowed down to a speed of about ten miles per hour;...