Keefe v. McCarthy

• Citation: 2 N.E.2d 1013,294 Mass. 567
• Parties: KEEFE v. McCARTHY (two cases).
• Decision Date: 29 June 1936
• Court: United States State Supreme Judicial Court of Massachusetts

294 Mass. 567

2 N.E.2d 1013

KEEFE v. McCARTHY (two cases).

Supreme Judicial Court of Massachusetts, Essex.

June 29, 1936

Actions of tort by Mary S. Keefe and Michael J. Keefe respectively, against Francis X. McCarthy. Rulings of the district court favorable to defendant were reported to the Appellate Division, and from an order of the latter dismissing the report in each case, plaintiffs appeal.

Order affirmed.

Appeal from Appellate Division, District Court of Essex, Southern district.

Lawrence F. Davis, of Lynn, for appellants.

J. W Sullivan and J. F. Doyle, both of Lynn, and J. F. Ryan, of Boston, for appellee.

PIERCE, Justice.

In the first action the plaintiff seeks to recover damages against the defendant for injuries sustained by her when struck by an automobile operated by the defendant as she was crossing Central street in Saugus, Massachusetts, on November 10 1932. The second action is by her husband seeking consequential damages.

The cases were heard in the district court of southern Essex. At the close of all the evidence material to the issues involved the defendant requested the following rulings: ‘ 1. If the plaintiff under the circumstances of this case did not see the automobile of the defendant before the accident then she cannot recover. 2. Upon all the evidence the plaintiff is not entitled to recover because as a matter of law the plaintiff was not in the exercise of due care and was negligent and said negligence contributed in part to cause the injuries and damage complained of. 3. Upon all the evidence the plaintiff is not entitled to recover because as a matter of law the defendant was not negligent. 4. As a matter of law this case is to be decided apart from any presumption of due care in favor of the plaintiff.’ ‘ The Court made the following rulings in reference to the requests of the defendant: The first is given. The second is given. The third is given. The fourth is not given, because of its form.’ A judge of the Appellate Division, designated to establish the report, reported the rulings to the Appellate Division for determination. The Appellate Division, after hearing the cases, which were submitted on briefs by both parties, ‘ found and decided that there was no prejudicial error in the allowance by the trial court of the second and third requests of rulings filed by the defendant,’ and ordered in each case an entry ‘ Report dismissed’ to be made by the clerk of the district court of southern Essex on the docket of said court.

The questions for decision under the rulings given numbered 2 and 3 are (1) Was the plaintiff Mary S. Keefe (hereinafter referred to as the plaintiff) on the reported evidence, in its aspect most favorable to her contention, guilty of any lack of due care which contributed to her injury? and (2) Was the defendant negligent in the operation of the automobile, and, if so, did such negligent operation result in the vehicle striking and injuring the plaintiff?

The reported evidence warranted a finding of the following facts Central street in Saugus runs north and south, and is a public highway. The accident occurred on Central street at about 5 p. m. on November 10, 1932. The plaintiff alighted from a motor bus, going in a southerly direction at the corner of Castle and Central streets. She proceeded to walk on the sidewalk in a northerly direction from the rear of the motor bus-a distance of a few feet-until she came to an automobile in which there was a man named Shapiro with whom she talked a minute. After this brief conversation...