Hennessey v. Moynihan
| Decision Date | 01 July 1930 |
| Citation | 172 N.E. 93,272 Mass. 165 |
| Parties | HENNESSEY v. MOYNIHAN. |
| 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 Anna Hennessey against William P. Moynihan. The trial judge refused to direct a verdict for defendant, and a verdict was returned for plaintiff, and defendant brings exceptions.
Exceptions overruled.
C. A. McCarron, of Boston (J. R. Kewer, of Boston, on the brief), for plaintiff.
G. P. Beckford, of Boston, for defendant.
The plaintiff brought an action of tort against Roy Wood and another against William P. Moynihan to recover damages for personal injuries alleged to have been received by her by reason of being struck and knocked down by a motor truck owned by Wood and operated by Moynihan. The cases were tried together and the plaintiff had verdicts in both. The case against Moynihan is here upon his exceptions to the refusal of the trial judge to direct a verdict for him and to grant certain requests for rulings, and to a ruling requested by the plaintiff.
The evidence tended to show that at about one o'clock, p. m. January 25, 1927, when the plaintiff, with another woman, was crossing Haymarket Square, Boston, in a northerly direction, from the subway entrance to the sidewalk in front of the Relief Hospital, she was injured by being struck and knocked down by a motor truck which was being driven by the defendant across the square in a westerly direction from Blackstone street to Canal street. There was evidence that the street was wet and slippery as if there had been rain in the morning, though the sun was shining at the time of the accident; that the defendant sounded his horn, shouted and applied the brakes; that the wheels locked; and that the truck then skidded to the right and struck the plaintiff. The testimony as to the speed of the truck and that as to the distance which it skidded were conflicting, but the jury could have found that the speed was from fifteen to eighteen miles an hour and that the truck skidded eighteen feet. The defendant testified that he knew there were ‘a great number of people, men, women and girls out to lunch at that time walking in and around Haymarket Square and those various side streets,’ that it was ‘a general area where anybody driving an automobile has got to be pretty careful where they are going,’ and that there was ‘a continuous line of traffic coming across this square.’ He testified that he was driving his truck through the traffic which was going north into North Washington street and was passing through an opening in the southbound traffic-there being no car at his right going south ‘for a brief space’-when he saw the plaintiff and her companion about twenty feet in front of him. He testified further that he knew that the sudden application of the brakes might cause the truck to skid, and that if it had been going slower he could have stopped it. Though the ‘mere fact that the automobile skidded was not evidence of negligence’ (Lambert v. Eastern Massachusetts Street Railway, 240 Mass. 495, 499, 134 N. E. 340, 22 A. L. R. 1291,Lonergan v. American Railway Express Co., 250 Mass. 30, 35, 144 N. E. 756), the jury would have been warranted in finding that, under the circumstances existing, the defendant was negligent in operating the truck at the speed shown, and that such negligence was the proximate cause of the plaintiff's injury. The defendant was not entitled to the ninth ruling requested by him limiting his liability to negligence at the time the emergency arose since the evidence warranted a finding that his negligence created the emergency, and the request of the defendant for the ruling that there was no evidence of negligence on his part was refused rightly. Rasmussen v. Whipple, 211 Mass. 546, 548, 98 N. E. 592;Tripp v. Taft, 219 Mass. 81, 84, 106 N. E. 578;Lambert v. Eastern Massachusetts Street Railway, 240 Mass. 495, 500, 134 N. E. 340, 22 A. L. R. 1291.
The request of the defendant for a ruling that the plaintiff was not in the exercise of due care also was refused rightly. The plaintiff testified that before she left the sidewalk at the subway entrance she ‘looked to see of there was any traffic coming this way’; that she saw traffic coming in front of her up and down North Washington street, but none from her right, the direction of Blackstone street; that she could not see Blackstone street from the sidewalk at the subway entrance, but could do so from a point ten to twenty feet away; that she ‘was walking along at a fairly reasonable rate of speed’ and as she ‘continued to walk * * * look both ways constantly’ and was aware that traffic from North...
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