Hepburn v. Walters

• Decision Date: 16 March 1928
• Citation: 160 N.E. 783,263 Mass. 139
• Parties: HEPBURN v. WALTERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 139

160 N.E. 783

HEPBURN

v.WALTERS.

Supreme Judicial Court of Massachusetts, Norfolk.

March 16, 1928.

Exceptions from Superior Court, Norfolk County; John D. McLaughlin, Judge.

Action of tort by Jean M. Hepburn, administratrix, against John J. Walters, to recover for the death of plaintiff's intestate from being struck by defendant's automobile. Verdict for the plaintiff, and defendant excepts. Exceptions overruled.

1. Automobiles k245(10)-Negligence of automobile driver in running down pedestrian passing in front of street car from which she alighted held for jury.

Negligence of automobile driver in striking intestate, who alighted from and passed in front of trolley car to cross street, held for jury.

2. Automobiles k244(53)-Defendant held not to have sustained burden of showing contributory negligence of pedestrian leaving street car struck by automobile (G. L. c. 231, s 85).

In action for death of pedestrian struck by an automobile driven by defendant when intestate alighted from and passed in front of trolley car to cross street, in view of presumption under G. L. c. 231, s 85, that intestate was not negligent, defendants held, under evidence, not to have sustained their burden of showing intestate's contributory negligence.

G. L. Harden, of Boston, for plaintiff.

A. E. Yont, of Boston, for defendant.

RUGG, C. J.

This is an action of tort to recover compensation for the death of the plaintiff's intestate caused by injuries received from being struck by an automobile driven by the defendant.

[1] There was evidence tending to show that the plaintiff's intestate with a number of other passengers alighted from the forward, right-hand door of a trolley car, intending to pass to the left around the front of the car and across the street; that the street was straight with an unobstructed view in both directions for three or four hundred feet; that a line of other passengers, separated from each other by about four feet, was in front of the plaintiff's intestate and another behind; that the automobile, driven by the defendant in the opposite direction from that in which the car had been going and coming down a slight grade at a rate of speed estimated to be about thrity-five miles an hour, and first seen by another pedestrian, approximately six feet behind the plaintiff's intestate, at a distance of about one hundred and fifty to one hundred and seventy-five feet, without giving any signal of its approach, struck the plaintiff, and thereafter went about one hundred feet before it was stopped. There was ample evidence of the negligence of the defendant. Emery v. Miller, 231 Mass. 243, 120 N. E. 655;Kaminski v. Fournier, 235 Mass. 51, 126 N. E. 279;Pawloski v. Hess, 253 Mass. 478, 149 N. E. 122.

[2] It could not have been ruled as matter of law that the burden of showing the contributory negligence of the plaintiff's intestate, which rested upon the defendant, had been...