King v. Weitzman

• Decision Date: 31 May 1929
• Citation: 166 N.E. 711,267 Mass. 447
• Parties: KING v. WEITZMAN (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

267 Mass. 447

166 N.E. 711

KING

v.WEITZMAN (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

May 31, 1929.

Exceptions from Superior Court, Suffolk County; P. J. O'Connell, Judge.

Actions by Joseph King, administrator, against Max Weitzman, and by the same plaintiff against Hyman Weitzman. Verdicts for plaintiff, and defendants bring exceptions. Exceptions overruled.

J. C. Johnston, of Boston, and J. J. Ronan, of Salem, for plaintiff.

J. T. Pugh, of Boston, for defendants.

RUGG, C. J.

These are actions of tort under G. L. c. 229, § 5, to recover compensation for the death of the plaintiff's intestate, alleged to have been caused by the negligence of the driver of an automobile truck, one of the defendants, who, at the time of the accident, was the agent of the other defendant acting within the scope of his authority.

[1] There was evidence tending to show that just before midnight on November 14, 1925, the automobile truck was being driven along Humboldt Avenue, a street running north and south in which there were two lines of street railway tracks, at a speed of possibly forty miles an hour; that Wyoming Street intersected Humboldt Avenue at right angles from the east, and nearly, but not exactly, opposite, Holworthy Street intersected Humboldt Avenue from the west; that, no horn being sounded, the automobile truck was turned without moderation of speed into Holworthy Street where the plaintiff'sintestate, walking upon the crosswalk, was struck and received injuries from which he soon after died, never having recovered consciousness; that the plaintiff's intestate with his son was walking along Humboldt Avenue and had taken one or two steps upon the crosswalk when he was struck. The son testified that as they approached the crosswalk he observed the automobile truck one hundred and fifty to two hundred feet away, proceeding in a northerly direction on Humboldt Avenue on its farther side. The testimony of the son as to what occurred after it was observed that the automobile truck was turning into Holworthy Street was somewhat conflicting, and there was evidence tending to show that he had made different statements on other occasions. It could not have been ruled as matter of law that his testimony must be disregarded. The testing of its credibility was for the jury. It was conceded in the bill of exceptions that the jury might properly find that the driver of the automobile truck was negligent, and that this negligence caused the injury complained...