Fraser v. Dunn

• Decision Date: 27 February 1924
• Citation: 142 N.E. 836,248 Mass. 62
• Parties: FRASER v. FLANDERS. SAME v. DUNN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

248 Mass. 62

142 N.E. 836

FRASER

v.FLANDERS.

SAME

v.DUNN.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 27, 1924.

Report from Superior Court, Suffolk County; W. H. Whiting, Judge.

Actions in tort by Samuel C. Fraser against Mary L. Flanders and against Catherine M. Dunn, respectively, for personal injuries sustained when struck by an automobile. Verdict for plaintiff in the first case, and for defendant in the second case. The case comes up on report in the first case, and on plaintiff's exceptions in the second case. Judgment for plaintiff in the first case and exceptions overruled in second case.

In the Dunn case Frances Flanders, called by plaintiff, after testifying to matters observed by her, was asked by plaintiff if she did not make inconsistent statements, and said she had no conversation with any one.E. Field, of Boston, and G. C. Thorpe, of Washington, D. C., for plaintiff.

F. M. Ryder, of Boston, for defendant Flanders.

E. I. Taylor, of Boston, for defendant Dunn.

BRALEY, J.

These actions are in tort for personal injuries alleged to have been caused by the negligence of the respective defendants, and, having been tried together, the verdict in the first case was for the plaintiff, and in the second case for the defendant. At the close of the evidence in the first case the defendant asked for the following rulings:

‘(1) On all the evidence the plaintiff is not entitled to recover from the defendant Flanders.

‘(2) On all the evidence the defendant Flanders had the right of way over the defendant Dunn and exercised it, and the law providing for precedence over the other at the intersection of a way has no application in this case.

‘(3) On all the evidence the plaintiff Fraser is not entitled to recover from the defendant Flanders if the jury find that the Flanders car has passed out of the path of the Dunn car before the Dunn car reached the intersection of the ways of the two cars.

‘(4) On all the evidence the jury must find for the defendant Flanders, there being no evidence from which the jury could find that she operated the car in a negligent manner.

‘(5) On all the evidence the jury must find for the defendant Flanders, there being no evidence that the collision between the Flanders and Dunn cars, which was subsequent to the contact between the Dunn car and the plaintiff Fraser had anything to do with, or contributed to the accident to the plaintiff Fraser.

‘(6) On all the evidence the jury must find for the defendant Flanders, if the jury find that the defendant Dunn was operating her car approaching the intersection of the two streets at an excessive rate of speed.’

[1] The defendant excepted to the refusal of the judge to give the requests, and to such portions of the instructions as were inconsistent with them. The plaintiff, a pedestrian, whose due care was for the jury under G. L. c. 231, § 85, was crossing Newbury street along the easterly side of Exeter street going in a southerly direction, which were intersecting highways in the city of Boston, when, as the jury could find, he was struck by an automobile, and severely injured. The jury also would have been warranted in finding, that shortly before the accident, the automobile driven by the defendant Flanders, moving northerly along Exeter street, and the Dunn automobile, moving westerly along Newbury street, were approaching at right angles. It appeared in the evidence of Mrs. Flanders, that she observed the Dunn car at a distance of about 65 feet from the place where the plaintiff was injured, and about 60 feet distant from the corner of Exeter and Newbury streets, while Mrs. Dunn testified that she saw the Flanders car, just at the time they were equally distant from the corner. It could be found that the cars were moving at about equal speed, and in view of these conditions the jury could say that in the exercise of ordinary prudence the respective drivers ought to have foreseen that, if the speed of either car was not slackened or its direction changed, the cars must ultimately come into collision. If the jury came to this conclusion, then Mrs. Dunn, as the judge properly instructed them, could rightly assume that Mrs. Flanders in operating her car would observe the provisions of G. L. c. 89, § 8, and chapter 90, § 1, and grant the right of way at the point of intersection to the Dunn car which was approaching on her right. See McCarthy v. Beckwith, 245 Mass. --, 141 N. E. 126. The parties, travelers on a public way, were bound to exercise reasonable care to avoid injury to each other in their respective use of the street. Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224,3 L. R. A. (N. S.) 345,4 Ann. Cas. 396.

[3] The plaintiff was not bound...