Kelly v. Hathaway Bakeries, Inc.

• Decision Date: 28 October 1942
• Citation: 312 Mass. 297,44 N.E.2d 654
• Parties: KELLY v. HATHAWAY BAKERIES, Inc. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 297

44 N.E.2d 654

KELLY

v.HATHAWAY BAKERIES, Inc. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 28, 1942.

Exceptions from Superior Court, Suffolk County; Joseph Walsh, Judge.

Tort actions by Robert Kelly, p. p. a., and by Frank Kelly, against the Hathaway Bakeries, Incorporated, for personal injuries sustained by plaintiff through the alleged negligence of defendant's servant in parking its truck. The trial judge directed verdicts for defendant, and plaintiffs bring exceptions.

Exceptions overruled.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and COX, JJ.

A. B. Cohen, of Boston, for plaintiffs.

T. H. Mahony, of Boston, for defendant.

LUMMUS, Justice.

These are actions of tort, brought respectively by the minor plaintiff (hereinafter called the plaintiff) and his father, because of personal injuries sustained by the plaintiff from the alleged negligence of the defendant's servant in parking its truck. The father sues for consequential damages. The judge directed verdicts for the defendant, and the cases are here on exceptions by the plaintiffs.

O'Callaghan Way in South Boston runs north and south. It is about twenty-four feet wide from curb to curb. A street called Sterling Square enters O'Callaghan Way. At the time of the accident an automobile was parked six or eight feet south of Sterling Square, on the west side of O'Callaghan Way. The defendant's truck, operated by its servant Phillips, came through Sterling Square, and turned right and south into O'Callaghan Way. It stopped and parked on O'Callaghan Way, about sixty feet beyond the other parked automobile, but on the easterly side of O'Callaghan Way, with its left front about one foot from the easterly curb and its left rear about three feet therefrom.

The plaintiff, with another boy, was walking south on the easterly sidewalk of O'Callaghan Way, and reached a point twelve feet south of the defendant's truck. The plaintiff backed out into O'Callaghan Way in front and south of the defendant'struck, and then saw an automobile operated by one Joyce about two hundred sixty feet away to the north, beyond the intersection of Sterling Square, and travelling south. The plaintiff went back to the sidewalk, but came out into the way again, and, seeing the Joyce automobile slowing down north of Sterling Square, formed the opinion that he had time to cross the street and started across. The Joyce automobile was coming at a rate of between eight and ten miles an hour and could have been stopped in eight feet. Joyce saw the plaintiff when the plaintiff was three feet to his left and fifteen feet in front of his automobile. His automobile struck and injured the plaintiff when the plaintiff was about two thirds of the way across O'Callaghan Way. The plaintiff testified that the defendant's parked truck prevented him fron seeing automobiles coming down O'Callaghan Way. There was evidence that on O'Callaghan Way traffic went in both directions.

The plaintiff relied on...