Joughin v. Fed. Motor Transp. Co.

Decision Date29 June 1932
Citation181 N.E. 754,279 Mass. 408
PartiesJOUGHIN v. FEDERAL MOTOR TRANSP. CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Report from Superior Court, Suffolk County; Donahue, Judge.

Action by Mary Joughin against the Federal Motor Transportation Company. Verdict for defendant. On report.

Judgment for plaintiff.A. J. Berkwitz and D. G. Nagle, both of Boston, for plaintiff.

E. Field, R. H. Field, and H. P. Moulton, all of Boston, for defendant.

FIELD, J.

This is an action of tort to recover compensation for personal injuries resulting to the plaintiff from being struck and knocked down by a motor truck. A verdictwas directed for the defendant on its motion and the case reported in accordance with an agreement of the parties that if the verdict was directed wrongly judgment should be entered for the plaintiff in the sum of $1,000, but if not judgment should be entered on the verdict.

The defendant admitted at the trial that the motor truck was owned by it and ‘being operated on its business at the time of the accident.’ The defendant now concedes also that the evidence warranted a finding that it was negligent. The question for consideration is whether it could have been ruled that the burden imposed upon the defendant by G. L. c. 231, § 85, of proving contributory negligence on the part of the plaintiff was sustained.

The evidence as to the manner in which the accident happened was conflicting. It is undisputed, however, that the plaintiff after alighting from an electric car outbound from Boston, passed behind the car from which she had alighted, crossed the track used by inbound cars and was proceeding across the street toward the sidewalk when she came in contact with the defendant's motor truck, which was being driven in the direction of Boston. The plaintiff and one of her witnesses testified that she was struck by the left front fender of the truck.

By force of the statute the plaintiff is presumed to have been in the exercise of due care and the burden of proving contributory negligence on her part was upon the defendant. The plaintiff, however, is bound by her own testimony except as she is entitled to the benefit of any more favorable explanation of the accident presented by the evidence. Whiteacre v. Boston Elevated Railway, 241 Mass. 163, 134 N. E. 640;Boni v. Goldstein, 276 Mass. 372, 376, 177 N. E. 581. Consequently, if her testimony, though so aided, demonstrates her lack of due care the statutory presumption does not help her, and the defendant as a matter of law has sustained the burden of proving her contributory negligence. Murphy v. Boston Elevated Railway, 262 Mass. 485, 487, 160 N. E. 265;Walsh v. Boston Elevated Railway, 271 Mass. 477, 171 N. E. 441, and cases cited.

According to the plaintiff's testimony, after alighting from the outbound car which had stopped at a white post, where such cars usually stop, she walked around back of it. She looked toward Boston to see if any traffic was coming from that direction and saw none, but, on looking in the other direction saw a car coming on the inbound track. She thought she had time to reach the sidewalk. The inbound car was coming to a stop a little back of the outbound car and about opposite the white post which was the stopping place for outbound cars. She ‘could not say whether it had passed the white post.’ When the plaintiff was on the inbound track she first saw the truck, then thirty-five or forty feet away, farther away than the inbound car. She thought she had time to pass in front of the truck and walked in front of the inbound car and of the truck. When she had gone about four feet-or had taken four or five steps-beyond the inbound track toward the sidewalk she was struck by the truck. She was walking in an ordinary manner and did not look again from the time she first saw the inbound car and the truck until she was hit. She did not remember seeing the inbound car stop. It kept on going behind her, but she could not tell whether it passed her before she was struck by the truck. This car gave no signal, and the plaintiff heard no signal or warning from the truck driver and did not see the truck pass the inbound car at any time. She did not notice any traffic on the street except these street cars and the defendant's truck and did not look to see if there was any other traffic. There was no evidence of any other traffic and no evidence of the width of the street.

A witness called by the plaintiff testified that the inbound car stopped about twenty feet back of the white post, which was the stopping place of inbound cars and was about three feet nearer Boston than the white post which was the stopping place of outbound cars, and about forty feet back from the place of the accident, and remained there until after the accident, and remained there until after the accident, and that the truck which was traveling at the side of the inbound car, ‘about half way back’ of it, kept on without stopping, passing within two feet of the right side of the inbound car. The operator of the defendant's truck, on the other hand, testified that he was following the inbound car about seventy-five or one hundred feet behind it and never passed it. He testifed that his truck was going twelve to fifteen miles an hour, that when he was about thirty feet away he saw the plaintiff come from behind the outbound car and start to dash across the street and that she was running.

It cannot be ruled as matter of law that the defendant has sustained the burden of proving that the plaintiff was guilty of contributory negligence, though there are distinct indications of such negligence in the evidence. The case was for the jury.

The plaintiff was required to exercise the care which would be exercised in the circumstances by a reasonably prudent person who knew the facts which she knew or ought to have known. When the plaintiff was on the inbound track she saw the truck. Apparently her view was unobstructed. The conclusion is not required that she...

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12 cases
  • Ristuccia v. Boston Elevated Ry. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • July 1, 1933
    ...in the existing circumstances. Nelson v. Old Colony Street Railway Co., 208 Mass. 159, 162, 94 N. E. 313;Joughin v. Federal Motor Transportation Co., 279 Mass. 408, 411, 181 N. E. 754. As was said in Kerr v. Boston Elevated Railway Co., 188 Mass. 434, 436, 74 N. E. 669, 670, of a bicyclist ......
  • McGray v. Hornblower
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 20, 1937
    ...the sale-which the judge could believe even if more favorable to the plaintiff than his own testimony, Joughin v. Federal Motor Transportation Co., 279 Mass. 408, 409, 181 N.E. 754;Sooserian v. Clark, 287 Mass. 65, 67, 191 N.E. 763-in connection with the other evidence in this case warrante......
  • Kenney v. Boston Elevated Ry
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 27, 1933
    ...Railway, 257 Mass. 541, 154 N. E. 89;Harding v. Boston Elevated Railway, 265 Mass. 344, 163 N. E. 860;Joughin v. Federal Motor Transportation Co., 279 Mass. 408, 181 N. E. 754. The case does not fall within Fitzpatrick v. Boston Elevated Railway, 249 Mass. 140, 144 N. E. 75; or Daignault v.......
  • Snow v. Boston Elevated Ry
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 30, 1939
    ...was bound required a conclusion as matter of law that she was guilty of contributory negligence. Joughin v. Federal Motor Transportation Co., 279 Mass. 408, 409, 181 N.E. 754;Campbell v. Cairns, Mass., 20 N.E.2d 427. We think that there is nothing in the evidence that requires such a conclu......
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