Gibb v. Hardwick
| Decision Date | 19 June 1922 |
| Citation | 135 N.E. 868,241 Mass. 546 |
| Parties | GIBB v. HARDWICK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Norfolk County; Marcus Morton, Judge.
Action by Walter C. Gibb, by his next friend, against Everett V Hardwick. Directed verdict for defendant, and plaintiff brings exceptions. Exceptions overruled.
Under St. 1914, c. 553, declaring contributory negligence an affirmative defense, if on all the evidence it appears that the carelessness of one struck by an automobile contributed to his injury, he cannot recover.
In an action for injuries by one alighting from a street car and passing behind the car upon the adjoining track, where he was struck by an automobile driving on the track because of snow on both sides of the tracks, evidence held to show that his failure to see the automobile in time to avoid being struck was due to his carelessness.
Charles J. McGilvray and S. M. Whalen, both of Boston, for plaintiff.
Frederick O. Katzman, of Hyde Park, for defendant.
The plaintiff, after alighting from a street car on Hancock street in the city of Quincy, went to the rear of the car, started to cross the adjoining track and was struck by the defendant's automobile traveling in the opposite direction from that of the street car.
The plaintiff testified that when he got off the car he looked down the right-hand side of the road; that the defendant's automobile was not coming from that side; that he did not look to the left; that as he got off the car it was coming to a stop, and stopped as he got about half way back; that he walked to the end and ‘just stepped out at the end and as he stepped out he saw the automobile on top of him; * * * that as he came around the back of the car he heard no horn; * * * that as he was looking to the right around the street car he was looking to see what was coming down the other side; that the automobile approached from his right coming down the other rail’ on the street railway track; ‘that it was pretty close to the street car when it went by; * * * that he had just taken one step outside of the * * * street car * * * before he was struck;’ that he was struck on the left side of his head by the mirror on the side of the automobile. He further testified that there was nothing to prevent his seeing the defendant's automobile coming as he got off the street car; that ‘before he got out free and clear of the electric car side there wasn't any chance to see anything coming in the tracks; that he could have seen a little; that he couldn't have seen much more than half way down the side of the electric car; * * * that he looked; that he saw the automobile when he first looked, and it was then not more than three feet away from him;’ that he did not see it when it was half the length of the car away, and that there was nothing in the way to obstruct his view. There was also evidence that snow was piled upon both sides of the car tracks and that automobiles and sleighs were traveling on the tracks. While the defendant testified that he was traveling very slowly, there was other testimony that he was going at the rate of 20 miles an hour.
[1] The important question is whether the plaintiff was in the exercise of due care. He is presumed to have exercised such care, and contributory negligence on his part is an affirmative defense to be pleaded and proved by the defendant. St. 1914, c. 553. Under the statute if on all the evidence it appears that the plaintiff's carelessness contributed to his injury, he cannot recover.
[2] We are of opinion that on the evidence most favorable to the plaintiff the rational inference to be drawn is that his own lack of reasonable care contributed to his injury and that a verdict was rightly directed for the defendant on that ground.
We are unable to distinguish in principle the...
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Kerby v. Oregon Short Line Railroad Co.
... ... Fleenor v. Oregon Short Line R. Co., 16 Idaho 781, ... 102 P. 897; Lyons v. Chicago City Ry. Co., 258 Ill ... 75, 101 N.E. 211; Gibb v. Hardwick, 241 Mass. 546, ... 135 N.E. 868; Dodds v. Omaha & C. B. Street R. Co., ... 104 Neb. 692, 178 N.W. 258; Jensen v. Oregon Short Line ... ...
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Grace Lefebvre's Admr. v. Central Vermont Railway Co.
... ... negative and of no value as evidence that it was not ... sounded," the words quoted being taken from ... Gibb v. Hardwick , 241 Mass. 546, 135 N.E ... 868. A reference to the last-named case shows that this ... statement was predicated upon the fact that ... ...
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Joughin v. Fed. Motor Transp. Co.
...her view was unobstructed. The conclusion is not required that she then looked carelessly, as did the plaintiff in Gibb v. Hardwick, 241 Mass 546, 548, 135 N. E. 868. According to her testimony she observed the positions of the inbound car and the truck substantially as disclosed by other t......
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