McGovern v. Thomas

• Decision Date: 28 February 1945
• Citation: 59 N.E.2d 718,317 Mass. 740
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: LEO MCGOVERN & another v. HENRIETTA THOMAS.

317 Mass. 740

59 N.E.2d 718

LEO MCGOVERN & another v. HENRIETTA THOMAS.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1945

January 2, 1945.

Present: FIELD, C.

J., LUMMUS, QUA WILKINS, & SPALDING, JJ.

Negligence, Motor vehicle, Use of way.

Evidence at the trial of an action by an eight year old boy against the operator of a slowly moving automobile for injuries sustained when he was struck by the automobile as he was walking across the space in a street between a diagonally parked truck and the opposite curb warranted findings that the plaintiff was in view of the defendant for enough time before the collision to enable the defendant to stop without striking him, and that the defendant was negligent in not doing so.

TORT. Writ in the Municipal Court of the City of Boston dated September 16 1941.

On removal to the Superior Court, the action was tried before Morton, J.

D. J. Kelly, for the plaintiffs. H. S. Avery, for the defendant.

QUA, J. This is an action by a minor plaintiff to recover for personal injury to himself and by his father to recover consequential damages (see G. L. [Ter. Ed.] c. 231, Section 6A, inserted by St 1939, c. 372, Section 1), all as the result of the minor plaintiff's being struck by an automobile driven by the defendant on Chapman Street in Quincy on September 8, 1941.

Chapman Street runs north and south and is twenty-four feet wide between curbs. The father, a truck driver, had taken the eight year old minor plaintiff with him in the cab of the truck. The father parked the seventeen foot truck on the westerly side of Chapman Street headed south at an acute angle to the curb and in such a position that the right rear end of its tailboard projected over the sidewalk. Its right front wheel, as the jury could find, was five or six feet from the curb at its right, and its left front corner was about at the middle of the street. The father then delivered his load of potatoes at the "First National Store," by whose door he had parked, leaving the boy in the cab. After a time, while the father was in the store, the boy got out of the cab by its left hand door, which swung toward the back of the truck, and started to cross to the east side of the street for the purpose of buying candy. While so crossing he was struck by the defendant's automobile, which approached from the south, travelling in a direction opposite to that in which the truck was headed, and passed between the truck and the curb on the east side of the street. After verdicts for the plaintiffs, the judge entered verdicts for the defendant on leave reserved, and the plaintiffs except.

The defendant recognizes that the crucial question in the case is whether as the defendant approached and drove through the space between the parked truck and the easterly curb, she had sufficient opportunity to become aware of the boy's presence in the street so that she ought to have avoided striking him. This is the only question argued by the defendant.

There was evidence from which the jury could have concluded that the boy came out suddenly from the side of the truck into the path of the defendant and that she was not negligent in hitting him. But there was also evidence coming principally from the boy plaintiff himself which the jury could believe and from which we think a rational inference could be drawn that the defendant had time to stop her automobile and was negligent in not doing so. The boy testified that when he got out of the truck and was in the street he looked and "saw a car [which could be found to have been that of the defendant] approaching"; that he saw this "car" as he started to cross from the truck; that he "got out of the truck and looked up there and there was the car coming and he thought he had plenty of time to go across"; and that the automobile was then "up at the end of the First National Store." This last statement, if correct, would according to photographs in evidence, appear to place the defendant's automobile in a position at a distance equal to more than twice the width of the street from the boy plaintiff just before he started to cross. But even if the jury thought this testimony inaccurate there was other evidence for their consideration. The boy testified to the effect that he crossed the street on a diagonal course bearing away from the direction from which the defendant was approaching. The boy demonstrated in the court room the distance he walked after he got out of the truck and before he was hit. Counsel agreed that the distance he walked in the court room was about fifteen feet. He gave other testimony somewhat at variance with the foregoing, but there was nothing to prevent the jury from believing the testimony hereinbefore stated. The defendant testified among other things that when she was at a point...