McDonald v. Bowditch

• Decision Date: 01 March 1909
• Citation: 87 N.E. 585,201 Mass. 339
• Parties: McDONALD v. BOWDITCH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 339

87 N.E. 585

McDONALD v. BOWDITCH.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1909

COUNSEL

J. F. McDonald and J. M. Graham, for plaintiff.

H. E Bolles, Tyler & Young, and E. N. Jones, for defendant.

OPINION

BRALEY J.

In their concurrent use of the public way at the time of the accident the plaintiff's intestate as a pedestrian, and the defendant's servant, as the driver of the team, were each required to exercise reasonable care to avoid injury to the other. But, having come into collision, the defendant contends there was no evidence for the jury of the due care of the decedent, who was thrown down and injured, or of the negligence of the driver, for whose acts he is responsible. It was undisputed that he was struck while rightfully using the street, even if he passed diagonally over, instead of keeping on and using the crosswalk. The defendant urges there was evidence which tended to show he neither looked nor listened for approaching vehicles, and ran into the team, and the driver, who was coming on the westerly side, testified the decedent looked up, and should have seen the team, when it was about 15 feet distant. At that time he was crossing to the easterly side of the intersecting street, and must either turn back or go forward, and even if he saw and kept on, the jury could say that according to common experience he had no reason to anticipate he would be run down, but having seen could proceed in safety. McCrohan v. Davidson, 187 Mass. 466, 73 N.E. 533. In their description the plaintiff's witnesses substantially said that he walked looking straight ahead, and apparently was run into by the horse striking him in the back. A heavy rain however, was falling, which might have caused observation as to the use of the street by others, on each side of his line of travel, not only to be inconvenient, but indistinct. It was for the jury to decide, upon conflicting evidence whether a failure to take further precautions rendered his conduct careless, and contributed N.E. 553. In their description the plaintiff's Mass. 79. It certainly could not have been ruled as matter of law, that he was bound to look or listen for the defendant's team, either before or while passing across. Shapleigh v. Wyman, 134 Mass. 118; Hennessey v. Taylor, 189 Mass. 583, 585, 586, 76 N.E. 224, 3 L. R. A. (N. S.) 345; McGourty v. De Marco, 200 Mass. 57, 85 N.E. 891. If the jury could...