Kaminski v. Fournier

• Citation: 126 N.E. 279,235 Mass. 51
• Parties: KAMINSKI v. FOURNIER.
• Decision Date: 26 February 1920
• Court: United States State Supreme Judicial Court of Massachusetts

235 Mass. 51

126 N.E. 279

KAMINSKI

v.FOURNIER.

Supreme Judicial Court of Massachusetts, Worcester.

Feb. 26, 1920.

Exceptions from Superior Court, Worcester County; Franklin T. Hammond, Judge.

Action by Frank Kaminski, administrator, against Etienne Fournier, resulting in verdict for plaintiff. Before the jury was dismissed, when the verdict was affirmed and recorded, the trial judge reserved leave with the consent of the jury, under St. 1915, c. 185, to enter verdict for defendant should it be decided either by the superior court or the Supreme Judicial Court that such verdict should have been entered. Defendant filed motion that verdict and judgment for him be entered in accordance with the reservation, and the court allowed the motion to enter verdict for defendant, denying defendant's motion for judgment, and plaintiff excepts. Exceptions sustained, verdict of jury to stand, and judgment ordered for plaintiff on the verdict.E. H. Vaughan, of Worcester, and A. R. Greeley, of Webster, for plaintiff.

Edward I. Taylor, of Boston, for defendant.

RUGG, C. J.

This is an action of tort to recover damages for the death of Mary Trzybinska. The evidence in its aspect most favorable to the plaintiff would have warranted a finding of these facts: A little after seven o'clock on a late July evening, on one of the principal streets in the town of Webster, the deceased, an elderly pedestrian, received mortal injuries by being struck by an automobile driven by the defendant. The street leads generally in an east and west direction. On its south side was the track of a street railway, between which and the north gutter of the street there was ample space for teams and vehicles to meet and pass each other. The accident occurred about thirty feet easterly from the foot of a hill, straight up which westerly the street went about three hundred feet to its top and thence onward. From the place of the accident an automobile might be seen a short distance beyond the top of the hill. An electric car going up the hill passed shortly before the accident, which occurred thirty or forty feet from the electric car. No vehicles other than the electric car and the automobile, and no persons aside from the deceased and those in the car and in the automobile, were in the neighborhood. The deceased came from the north side of the street, being opposite to that on which was the street railway track. Before stepping off the sidewalk preparatory to crossing the street, she looked both ways to see if any machine was coming and did not observe any. Then, as ‘she put her foot on the street from the sidewalk,’ she dropped her house key and stooped to pick it up and was struck by the automobile moving at the rate of twenty miles an hour. There was evidence to the effect that the deceased took ‘two steps from the curb’ and that she was not ‘more than a foot or two from the sidewalk.’ The defendant was not a skillful driver. A professional chauffeur was with him, who testified that they were coasting down the hill, that he saw the deceased upon the sidewalk and noticed her step from the sidewalk into the street, and that he told the defendant to ‘put on the brakes hard,’ but instead, the defendant took off the brake.

[1] Plainly, there was evidence of negligence on the part of the defendant.

[2][3] There was direct and inferential evidence sufficient to support a finding that the deceased was actively in the exercise of due care. Hudson v. Lynn & Boston R. R., 185 Mass. 510, 71 N. E. 66;Hayes v. Boston Elev. Ry., 224 Mass. 303, 112 N. E. 484. Evidence to the effect that the deceased looked both ways before stepping off the sidewalk and did not see the automobile is not so clearly contradicted by the irrefutable facts as to require the conclusion that she looked negligently within the rule declared in Roberts v. N. Y., N. H. & H. R. R., 175 Mass. 296, 56 N. E. 559,Fitzgerald v....