Jean v. Nester
| Decision Date | 29 November 1927 |
| Citation | 158 N.E. 893,261 Mass. 442 |
| Parties | JEAN v. NESTER (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Bristol County; Joseph Walsh, Judge.
Action by Rita Jean, per pro. ami, against M. Charles Nester, and action by Arthur Jean against the same defendant. On plaintiffs' exceptions after a directed verdict for defendant. Exceptions sustained.
W. M. Sullivan, of Fall River, for plaintiffs.
H. F. Hathaway, of Boston, and E. A. Hathaway, of Philadelphia, Pa., for defendant.
These are two actions of tort. One is brought by the father and next friend of Rita Jean (hereinafter called the plaintiff) for personal injuries sustained by her when struck by an automobile driven by the defendant as she was crossing South Main street, Fall River. She was seven years, two or three months old at the time of the accident. The other action is by her father to recover for expenses.
There was evidence that South Main street runs north and south and is forty feet wide from curb to curb; that from the curb on the east side to the nearest car rail is about twelve feet eight inches; that there are ‘two sets of double car tracks running in the center of’ the street; that an automobile was parked on the east side and the distance between the westerly side of the automobile and the nearest rail was about five or six feet; that as the plaintiff was walking on the easterly sidewalk, going in a northerly direction, her aunt, who was on the opposite side of the street, called her, and she started to run towards her aunt in a northwesterly direction, passing in front of the parked car; that when the plaintiff ‘got as far almost as the car track’ she stopped and waited for an automobile moving in a southerly direction to pass; that she then started to go in a northwesterly direction and when she arrived at a point ‘between the two sets of double car tracks,’ running in the center of South Main street,' she was hit by the defendant's automobile going in a northerly direction. The plaintiff testified ‘she heard no horn after she stopped to let the machine go south and then started to go across again.’ There was additional testimony from one who heard the brakes applied to the defendant's automobile and ‘heard * * * [some one] let out a loud holler,’ ‘that he didn't hear the defendant blow a horn before he saw the girl struck.’ The accident happened about 5 o'clock in the afternoon of October 22 or 23. It was misty at the time, ‘darking a little.’ The street was wet and slippery. A witness testified that the defendant's automobile was moving slowly; that the plaintiff's ‘face and head was away from the car with which she collided; that at no time from the time she left the easterly sidewalk up to the instant of collision did he see her look toward the car with which she collided; that there was nothing that would have prevented her from seeing it if she had looked.’ There were no electric cars in the street. The plaintiff testified there was nothing else in the street at the time she crossed except the automobile that was parked right near the sidewalk and the automobile that struck her. At the close of the plaintiff's evidence the defendant moved for a directed verdict. This motion was allowed and the plaintiff excepted.
[1][2] It has been decided that when an injured person steps from behind one object in the street, in front of another object, which injures him, without looking or listening, he is guilty of contributory negligence as matter of law. Doyle v. Boston Elevated Railway, 248 Mass. 89, 91, 92, 142 N. E. 693. The plaintiff ran in front of the parked automobile, but when she came to the nearest car track, which was five or six feet distant from the automobile, she stopped and waited for an...
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Bessey v. Salemme
...the court said at pages 168, 169, 183 N.E. at page 155: ‘He was of an age to be rightfully on the street unattended (see Jean v. Nester [261 Mass. 442, 158 N.E. 893];Burns v. F. Knight & Son Corp., 213 Mass. 510, 100 N.E. 618;Giaccobe v. Boston Elevated Railway, 215 Mass. 224, 102 N.E. 322,......
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Smith v. Gould
...shelter of a standing vehicle or some other stationary object. Grien v. Gordon, 280 Pa. 576, 124 A. 737, 34 A.L.R. 1511; Jean v. Nester, 261 Mass. 442, 158 N.E. 893; Pierce v. Hosman, 201 Ky. 278, 256 S.W. Defendant says that such was the manner in which the accident at bar occurred, and he......
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Bessey v. Salemme
...eight years and one month old, the court said at pages 168-169: "He was of an age to be rightfully on the street unattended (see Jean v. Nester, 261 Mass. 442 , Burns v. F. Knight & Son Corp. 213 Mass. 510 Giaccobe v. Boston Elevated Railway, 215 Mass. 224 , where the children involved were......
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Smith v. Gould, (No. 6942)
...vehicle from the shelter of a standing vehicle or some other stationary object. Brien v. Gordon, (Pa.) 34 A. L. R. 1511; Jean v. Nester, (Mass.) 158 N. E. 893; Pierce v. Horsman, (Ky.) 256 S. W. 397. Defendant says that such was the manner in which the accident at bar occurred, and he conte......