Milbury v. Turner Ctr. Sys.

• Decision Date: 30 January 1931
• Citation: 174 N.E. 471,274 Mass. 358
• Parties: MILBURY v. TURNER CENTER SYSTEM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 358

174 N.E. 471

MILBURY

v.TURNER CENTER SYSTEM.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 30, 1931.

Report from Superior Court, Essex County; Walter L. Collins, Judge.

Action by Paul Milbury, p. p. a., against the Turner Center System. On report from the trial judge.

Judgment for plaintiff.James W. Sullivan and Joseph F. Doyle, both of Lynn, for plaintiff.

C. C. Petersen, of Boston, for defendant.

WAIT, J.

The plaintiff, a boy five years of age, was hit and injured by an automobile as he was crossing Boston Street, in Lynn, at its junction with Cedar Street. He brings this action against the owner of another automobile which was parked on Boston Street at a point nearer Cedar Street than was permitted by the ordinances of Lynn, and he contends that such parking was negligence which contributed to cause his injury and for which the defendant is responsible to him.

The following facts are substantially undisputed: Boston Street runs practically east and west. Cedar Street enters it from the north but not at right angles, and does not cross it. There is a store on the southeast corner of Cedar Street. A servant of the defendant halted its truck beside the curbing before the store and left it in Boston Street heading westward with its front end projecting three to five feet beyond the easterly line of the sidewalk of Cedar Street produced to the curb of the sidewalk of Boston Street, and within about three to five feet from the rounded corners of the curbs. He went into the store on business for the defendant some six or seven minutes before the accident and remained until after it occurred. An ordinance of Lynn legally in effect provided that: ‘No owner or operator of any vehicle or street car shall stop or stand the same within the intersection of any street, nor within ten feet of a street corner.’ There is a fine penalty for violation. The position of the truck violated this ordinance. The truck was fifteen to eighteen feet long. The hood extended about six feet back to the cab which was roofed. Its sides were built up, closed in, covered by a wooden roof, and stood ten or eleven feet above the sidewalk. It was seven feet wide, and as it stood left about two feet nine inches of clear roadway to the nearest car rail in Boston Street. The plaintiff, who had been with other boys on the sidewalk of Cedar Street near the corner, saw his father standing on the opposite side of Boston Street and started across to him. He faced west and was going a little faster than a walk, but was not running. He passed about a foot in front of the truck in Boston Street, and was about a foot beyond the line of its outer side when he was struck by the righthand front mudguard and wheel of an automobile approaching from the east. Just as he was about a step beyond the truck, his father shouted a warning. He seemed to hesitate, turned to look to his left and was hit. The automobile was going at about twelve miles per hour. The driver did not know of the existence of Cedar Street. His view along Boston Street and toward Cedar Street was obstructed by the truck. He did not see the boy leave the sidewalk or pass in front of the truck, nor until his automobile was practically abreast of the front of the truck. He had turned somewhat to his right as he was passing the truck because of traffic approaching from the west, and was about two feet from it. The trial judge directed a verdict for the defendant, and reported the case to this court with a stipulation in regard to judgment.

The plaintiff contends that the case should have been submitted to the jury; and argues that the admitted violation of the ordinance was evidence of negligence which could be found to have been a proximate contributing cause of the accident; and that the judge could not properly rule, as matter of law, that contributory negligence by the plaintiff had been established.

It is the law that a violation of a statute or ordinance is evidence of negligence. We need cite only a few of the decisions. Wright v. Malden & Melrose Railroad, 4 Allen, 283, 290;McDonald v. Snelling, 14 Allen, 290, 92 Am. Dec. 768;Berdos v. Tremont & Suffolk Mills, 209 Mass. 489, 95 N. E. 876, Ann. Cas. 1912B, 797;Gordon v. Bedard, 265 Mass. 408, 164 N. E. 374;Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 167 N. E. 235;Rea v. Checker Taxi Co. (Mass.) 172 N. E. 612. Equally clearly, it is established that such evidence does not make out actionable negligence, unless the violation can be shown to have been actually a proximate cause contributing to the injury suffered. Newcomb v. Boston Protective Department, 146 Mass. 596, 16 N. E. 555,4 Am. St. Rep. 354;Falk v. Finkelman (Mass.) 168 N. E. 89. If there was evidence which would sustain a verdict against the defendant for negligence, them, whether that negligence arose simply from the violation of a legal requirement or from other negligent conduct, the plaintiff was entitled to have the jury pass upon the issue, unless the negligent act bore no causal connection with the accident, or unless his own lack of due care contributed to his injury.

If other happenings cause or contribute toward the injury or intervene between the violation and the injury, as was said in McDonald v. Snelling, 14 Allen, 290, 296, 92 Am. Dec. 768: ‘It is clear from numerous authorities that the mere circumstance that there have intervened, between the wrongful cause and the injurious consequence, acts produced by the volition of animals or of human beings, does not necessarily make the result so remote that no action can be maintained. The test is to be found, not in the number of intervening events or agents, but in their character, and in the natural and probable connection between the wrong done and the injurious consequence.So long as it affirmatively appears that the mischief is attributable to the negligence as a result which might reasonably have been foreseen as probable, the legal liability continues.’ Foster, J.,...