Lynch v. Fisk Rubber Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: BRALEY, J.
• Citation: Lynch v. Fisk Rubber Co., 209 Mass. 16, 95 N. E. 400 (Mass. 1911)
• Decision Date: 19 May 1911
• Parties: LYNCH v. FISK RUBBER CO.

209 Mass. 16

95 N.E. 400

LYNCH v. FISK RUBBER CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1911

COUNSEL

Declan D. Corcoran and Declan W. Corcoran, for plaintiff.

Walter I. Badger and Wm. Harold Hitchcock, for defendant.

OPINION

BRALEY J.

This is an action to recover for personal injuries suffered by the plaintiff from being run over by an automobile, owned and operated by the defendant, while they were concurrently using a public way. In the superior court, at the close of the plaintiff's evidence, a verdict was ordered for the defendant, and the case is here on exceptions. It is the defendant's contention that there was no evidence of the plaintiff's due care, or of its negligence. The plaintiff was employed by marketmen to deliver goods to their customers, which he carried in bundles, either on his shoulders, or in his arms. After making a delivery on the day of the accident he was returning to his place of employment when it became necessary to pass over the street where he was struck, while on the crosswalk, by the automobile, and the jury could find that before starting he looked in each direction and saw that 'everything looked clear.'

But even if he had not taken this precaution, his conduct under the circumstances would not, as matter of law, have prevented his recovery if he had been injured by a passing team. Murphy v. Armstrong Transp. Co., 167 Mass. 199, 45 N.E. 93.

And the fact that the defendant's conveyance was an automobile instead of a horse-drawn vehicle is immaterial. Hennessey v. Taylor, 189 Mass. 583, 76 N.E. 224, 3 L. R. A. (N. S.) 345.

The jury further could have found that when the collision occurred the...