Donovan v. Mutrie

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: SANDERSON
• Citation: Donovan v. Mutrie , 265 Mass. 472, 164 N.E. 377 (Mass. 1929)
• Decision Date: 04 January 1929
• Parties: DONOVAN v. MUTRIE (two cases).

265 Mass. 472

164 N.E. 377

DONOVAN

v.MUTRIE (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 4, 1929.

Exceptions from Superior Court, Suffolk County; Wimfred H. Whiting, Judge.

Actions by George H. Donovan, administrator of the estate of Salvatore Arcadipani, deceased, against Francis P. Mutrie and Patrick Mutrie, respectively. Verdicts for plaintiff, and defendants bring exceptions. Exceptions overruled.

1. Automobiles k245(72, 89)-Whether pedestrian killed by truck exercised due care and acted in emergency not created by him held for jury.

In action for death of pedestrian, struck by truck while crossing street near intersection, decedent's due care and question whether he was called on to act in emergency, for creation of which he was not to blame, held for jury.

2. Automobiles k245(6)-Whether truck driver should have seen and taken precautions to avoid striking pedestrian, though traffic had started, held for jury.

In action for death of pedestrian, struck by truck while crossing street near intersection, whether driver, in exercise of reasonable care, should have seen decedent when truck started and was traversing intervening space and taken some precautions to avoid striking him, though traffic had started in accordance with officer's direction, held for jury.

3. Automobiles k160(3, 4)-Truck driver must use reasonable care to avoid injuring pedestrian crossing street when traffic starts and slow down and give timely signal (G. L. c. 90, s 14).

Truck driver had right to rely to some extent on expectation that pedestrians would not be crossing street when traffic was authorized to move by traffic officer, but was still bound to use reasonable care to avoid injuring them and to obey G. L. c. 90, s 14, by slowing down and giving timely signal.

4. Automobiles k246(58)-Evidence held not so conclusive as to show error in instruction that pedestrian was not necessarily contributorily negligent in starting across street after traffic started (G. L. c. 231, s 85).

Evidence of pedestrian's want of care held not so conclusive as to warrant holding that trial judge erred in instructing jury that he was not necessarily guilty of contributory negligence, precluding recovery for his death, as matter of law, if he started to cross street after traffic started on officer's signal, in view of presumption and burden of proof under G. L. c. 231, s 85.W. P. Lombard, of Boston, for plaintiff.

J. J. Curran, of Boston, for defendants.

SANDERSON, J.

Each of these cases is an action for death and conscious suffering of the plaintiff's intestate, Salvatore Arcadipani, alleged to have been caused by the negligence of the defendant Patrick Mutrie, in the operation of a motor truck owned by his son, Francis P. Mutrie, the defendant in the other case. Agency of the driver was admitted. In each case a verdict was returned for the plaintiff.

[1] The decedent, a man about seventy years of age, was killed while crossing Commercial Street, in Boston, near its intersection with Battery Street, by a truck driven on Commercial Street in a southerly direction. That street is about forty feet wide with an elevated structure upon it, together with the Battery Street station of the Boston Elevated Railway. The deceased walked down Battery Street to Commercial when both foot travel and vehicular traffic were heavy. Upon reaching the sidewalk on Commercial Street at the corner of Battery, the plaintiff's intestate paused and looked both ways on Commercial Street. At that time traffic on Commercial Street had been stopped by a traffic officer and pedestrians were crossing from Battery Street. The deceased started from the curb to cross and when he had gone about eight feet the officer gave the signal for vehicles to move. At this time the defendant's truck was at the head of the line and nearer the curb than the automobile on its left. When the deceased started to cross no vehicles had moved and some people were then about half way across. The deceased kept on his way until he turned toward the approaching truck and apparently tried to avoid it by going back but was hit by the front of the truck or the front right wheel. When hit he carried under his arm a bundle of boards or some other heavy material. One of the right wheels or both of them went over him. The jury could have found that when struck he was about fifteen feet from the curb which he had left.

There was evidence that the truck, carrying a load of five or six tons, was moving at the rate of fifteen or more miles an hour at the time of the accident. From the point where it started...