Fayard v. Morrissey

• Decision Date: 30 November 1932
• Citation: 183 N.E. 154,281 Mass. 166
• Parties: FAYARD v. MORRISSEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

281 Mass. 166

183 N.E. 154

FAYARD

v.MORRISSEY.

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 30, 1932.

Nov. 30, 1932.

Exceptions from Superior Court, Worcester County; W. Thayer, Judge.

Action by John Fayard, Jr., p. p. a., against James W. Morrissey. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled.

J. J. Moynihan, of Worcester, for plaintiff.

C. C. Milton, of Worcester, for defendant.

DONAHUE, J.

The defendant was driving his automobile in an easterly direction on East Worcester Street, in the city of Worcester, within two feet of such motor vehicles as were parked along the curb at his right. He knew the street very well and the general character of the locality. Immediately after passing East Worcester Place which intersected at his right the street on which he was travelling, and shortly before he came opposite Cross Street which intersected it at his left, the right front part of his automobile collided with the plaintiff who was crossing East Worcester Street in a northerly direction. As he approached, the defendant saw half a dozen children playing in the street one or two hundred feet east of the scene of the accident. Opposite the point where the collision occurred there was a truck belonging to the plaintiff's father parked in front of his store at the defendant's right.

The foregoing facts were not in dispute. On conflicting evidence the jury was warranted in finding as facts what here follows. The plaintiff, who was about eight years and one month old, when on the sidewalk beside the parked truck looked and saw the defendant's automobile approaching at a distance which he testified was four hundred feet; he also looked in the opposite direction and proceeded on the sidewalk to the front of the truck with the intention of there crossing the street; he did not look again until the instant of the collision; he stepped from the sidewalk into the street when the automobile was two hundred to two hundred and fifty feet away; he continued at a walk in the street for a space the width of the truck and reached a point beyond the northerly line of the truck; at that point there was nothing in the street to obstruct the defendant's view of him; the automobile was then one hundred feet distant; the defendant's automobile was moving at the rate of twenty to twenty-five miles an hour when it was twenty feet from the point of collision; the brakes were applied when it was four or five feet from the plaintiff, it travelled twenty-five or thirty feet with the brakes on before it came to a stop twenty or twenty-five feet from where the plaintiff lay in the street after the collision. The jury was warranted in finding on the evidence that the defendant could have seen the plaintiff in the street and have avoided striking him (Jean v. Nester, 261 Mass. 442, 445, 158 N. E. 893); that he maintained a speed which...