Holden v. Bloom
| Decision Date | 30 June 1943 |
| Citation | 50 N.E.2d 193,314 Mass. 309 |
| Parties | JOHN HOLDEN v. PHILLIP BLOOM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
December 8, 1942.
Present: FIELD, C.
J., DONAHUE, QUA DOLAN, & RONAN, JJ.
Negligence, Motor vehicle, Use of way, Violation of law, Contributory. Evidence, Presumptions and burden of proof.
On evidence of the circumstances in which a defendant operated an automobile toward and struck the plaintiff, a boy playing in the street near the curb, without slowing down as required by G. L (Ter. Ed.) c.
90, Section 14 after observing the boy, or changing his course, which he might have done, there was error in granting a request by the defendant for a ruling that as a matter of law there was no evidence of negligence on his part which contributed to the plaintiff's injury, and in denying a request for the plaintiff that the evidence would warrant a finding for him.
A boy ten years of age, playing in a street near the curb and struck by an automobile which he had heard approaching, in the circumstances shown by the evidence had a right to rely to a reasonable extent upon the expectation that the operator of the automobile would take reasonable precautions to avoid injuring him and, in an action by him against the operator, a ruling that he was contributorily negligent was not required.
A ruling that the defendant in an action by a minor for personal injuries had not sustained the burden, placed upon him by G. L. (Ter. Ed.) c.
231, Section 85, of proving that the plaintiff was guilty of contributory negligence was not necessarily inconsistent with a ruling, in an action by the minor's father for consequential damages, heard with the minor's action upon the same evidence, that the father had not sustained the burden resting upon him at common law, of proving that the minor was in the exercise of due care.
TORT. Writ in the Second District Court of Eastern Middlesex dated November 18, 1939.
The case was first heard by Murray, J., and, at the second trial, by Moynihan, J.
G. B. Stuart, for the plaintiff, submitted a brief. H. S. Avery, for the defendant.
This is an action of tort to recover compensation for personal injuries sustained by the plaintiff, a minor, as a result of alleged negligence on the part of the defendant. The case was tried first in the District Court together with an action of the minor's father for consequential damages. At the close of the evidence the defendant made two requests for rulings as follows: The judge allowed the defendant's first request for a ruling. He also "allowed the defendant's second request . . . as modified that the evidence does not require such a finding but may warrant it." He denied, among others, the plaintiff's request for a ruling that the evidence warranted a finding for the plaintiff. The judge found for the defendant in both cases because he could not "find the evidence warrants a finding of the defendant's negligence." Both cases were reported to the Appellate Division which ordered that the findings for the defendant be vacated and that a new trial be had.
There was evidence at this first trial that would have warranted the judge in finding the following facts: On July 28, 1939, the defendant was driving his automobile at a speed of twenty-five miles an hour easterly on Pearl Street in Newton. The locus is in a thickly settled residential district. Pearl Street is thirty-two to thirty-four feet wide "between the gutters and is intersected by Thornton Street (about the same width) the easterly line of Thornton Street being about one hundred feet west of where the accident took place." Including the defendant, three persons were sitting on the front seat of his vehicle. The defendant first saw the plaintiff and another boy playing about on the edge of the sidewalk or in the gutter not more than a foot from the sidewalk. They were then at a distance from him of about one hundred forty-nine feet. There were no parked vehicles nor vehicles coming toward the defendant to obstruct his view. The street was straight, the weather clear, the time midafternoon. The defendant was proceeding in a straight course not less than three feet distant from the sidewalk where the boys were playing. Approaching this point he did not diminish the speed at which he was operating his automobile. The front of the vehicle passed the boys but the plaintiff was struck by some part of the right side of the automobile. He "was dragged about a yard and lay with his head at the curb." Just before the accident occurred the plaintiff, then ten years old, was about a foot from the sidewalk, talking and "fooling" with his brother Gerald. He heard the defendant's automobile approaching, but did not see it nor pay any particular attention to it.
The granting of the defendant's first request, that as a matter of law there was no evidence of negligence on his part which contributed to the plaintiff's injury, was erroneous. Upon the evidence, it could not have been ruled properly that the defendant's conduct did not constitute negligence that was the proximate cause of the plaintiff's injury. It appears from the evidence that, in approaching the plaintiff who was a pedestrian upon the travelled part of the way, the defendant failed to slow down in violation of G. L. (Ter. Ed.) c. 90, Section 14. "The violation of a penal statute is evidence of negligence as to all consequences that the statute was intended to prevent . . . [but] Negligence consisting in whole or in part of violation of law, like other negligence, is without legal consequence unless it is a contributing cause of the injury." Baggs v. Hirschfield, 293 Mass. 1 , 3, and cases cited. In the instant case we think that it could not have been ruled properly that the violation of the statute was not a contributing cause of the plaintiff's injury. As before pointed out, it could have been found on the evidence that the defendant saw the "boys" when he was at a distance of one hundred forty-nine feet from them; that at one point he saw them in the street, and at another, at the edge of the sidewalk; that, at still another point, he saw one of them in the gutter, and that notwithstanding, he did not slow down, but continued straight on within three or four feet of the sidewalk without swerving or changing his course in any way, although the roadway was thirty-two to thirty-four feet in width and was not obstructed by parked "cars" coming from the opposite...
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