Falk v. Finkelman
| Decision Date | 01 October 1929 |
| Citation | 168 N.E. 89,268 Mass. 524 |
| Parties | FALK v. FINKELMAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; J. D. McLaughlin, Judge.
Action by Edward I. Falk against Nathan S. Finkelman. Verdict for plaintiff, and defendant's motion for new trial overruled. Defendant brings exceptions. Exceptions to decision on motion for new trial overruled, exceptions to verdict sustained, and judgment rendered for defendant.
G. I. Cohen, of Boston, for plaintiff.
E. J. Sullivan, of Boston, for defendant.
This is an action of tort for personal injuries. It was tried with two other cases, one against one Fred Menard, the other against one Thomas F. Sexton, involving the negligence of two members of the Revere fire department, arising out of the same accident. The jury returned a verdict in favor of the plaintiff against each defendant. At the close of the evidence material upon the question of liability the defendant presented a request in writing that upon all the evidence the court direct a verdict for the defendant. This motion, ‘in no wise directed to the form of the pleading,’ was denied and the defendant's exception saved.
The evidence introduced in its aspect most favorable to the plaintiff tended to establish that on October 8, 1925, the defendant's automobile was parked on the southerly side of Shirley avenue a short distance from a hydrant near the corner of said street and North Shore road in the city of Revere; that there was an ordinance of the city of Revere which prohibited the parking of automobiles on Shirley avenue for more than 20 minutes or after being told by a police officer to move; that a police officer of Revere, a half hour before the occurrence of the plaintiff's accident, told the defendant to remove his automobile; that the defendant's automobile had been so parked for a period considerably in excess of 20 minutes up to and including the time of the accident; that on the northerly side of Shirley avenue directly opposite the drug store on the corner, in front of which the defendant's car was parked, there was a pile of dirt, thrown from an excavation in the sidewalk, extending out 8 feet from the curb; that Shirley avenue is 31 feet in width at about the place of the accident; that the width of ‘Engine 2’ was about 7 feet, that of ‘Combination C’ is about 6 feet, and that of the defendant's car 5 feet; that at about 12:50 p. m. on said date, while the plaintiff was standing on the southerly sidewalk of Shirley avenue near the defendant's automobile, the aforementioned pieces of fire apparatus of the city of Revere, ‘Combination C’ coming down North Shore road and ‘Engine 2’ traveling on Shirley avenue, collided in the intersection of said streets; and that ‘Engine 2’ collided with the defendant's parked car, pushed it forward 10 or 15 feet up on the sidewalk, where it struck the plaintiff, with the result that he was severely injured and suffered the loss of his left leg.
The testimony of the defendant established that he was the owner of the automobile in question, that he placed it himself in the position it occupied at the time of the accident, and it tended to prove that he did not know at that time that he was not permitted to park automobile more than 20 minutes on Shirley avenue, that no such requirement had been brought to his attention, and that he had not been told on that day to move his car by a police officer. His testimony further established that he saw the pile of dirt opposite the drug store at the time he parked his car, that he knew that it narrowed the traffic part of the way and knew that parking his automobile opposite the pile of dirt would narrow it still more. He testified in substance that he did not know that the fire was in his vicinity until a few minutes before the accident, when he saw the ‘Walden Street engine’ coming along; that he did not...
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