Mitchell v. Silverstein
| Decision Date | 04 December 1946 |
| Citation | 70 N.E.2d 306,320 Mass. 524 |
| Parties | MARY A. MITCHELL, administratrix, v. NATHAN SILVERSTEIN(and a companion case [1]). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 11, 1946.
Present: FIELD, C.
J., DOLAN, RONAN WILKINS, & SPALDING, JJ.
Negligence, Motor vehicle.
Evidence of the extent and nature of damage caused to an automobile by a collision with a pedestrian on a wide street in the darkness of an early
February morning under war "dim out" conditions, and of the position and the extent of blood stains and fresh human tissue on the front of the automobile would have warranted a finding that the pedestrian was struck while standing or moving and that his resulting death was caused by negligence of the operator of the automobile.
TWO ACTIONS OF TORT. Writs in the Superior Court dated September 3, 1943.
The cases were tried before Williams, J. In this court the cases were submitted on briefs.
E. F. Cooley, for the plaintiff. M. T. Prendergast, for the defendants.
These are two actions of tort, one against the owner, and the other against the operator, of an automobile to recover for the death of the plaintiff's intestate by reason of being struck by the automobile, which was allegedly operated in a negligent manner. The only question argued is whether there was error in the direction of verdicts for the defendants.
We summarize the facts which the jury could have found upon the evidence which came entirely from witnesses called by the plaintiff. The only eyewitness to the actual striking of the deceased was the defendant Sherman (hereinafter called the defendant). He did not testify, but two statements of his, one to an inspector for the registry of motor vehicles, and one to a police officer, were received in evidence.
On February 20 1943, about 6 A.M. the defendant, an employee of the defendant Silverstein, was driving a taxicab and "riding on the rails" "in the car tracks" and proceeding in a southerly direction on Tremont Street Boston, between Rutland Street and Concord Square. Tremont Street is seventy feet wide and contains two sets of car tracks, which occupy a width of fifteen feet nearly in the center of the street. The weather was clear and the street damp. It was dark and during the wartime "dim out," and there were two are lights at the corner of Tremont Street and Concord Square, which gave forth an uncertain amount of light. There was no other moving traffic. The defendant's headlights were "on full beam." His speed was between twenty and twenty-eight miles per hour. About fifty feet before reaching Concord Square and "right close to the right outbound track" the defendant struck the deceased. The outside car rail was either twenty-four or thirty-one feet from the curb. After the defendant stopped, the body of the deceased (who was pronounced dead upon arrival at the hospital at 6:30 A.M.) was found lying under the front of the automobile, with the head and shoulders showing. The defendant in his statements said that he had seen a man lying in the street about ten feet in front of his automobile to the right of the car tracks, and that he had not had time to turn either way and had put on his brakes hard and stopped. A bystander "noticed bleeding and blood moving along the tracks and that it wasn't there [at] first."
Human blood stains were on the front bumper of the automobile and on a fog light mounted on the left bumper bracket. Spotted stains were on the left front mudguard. The lens on the right headlight was loose, twisted about twenty-five degrees, and dropped one inch out of place. The fog light was loose and bent slightly to the left, the lens showing a cracked chip, over which dirt had been brushed off for about three quarters of an inch. The right vertical part of the flange retaining the lens showed stains, and on the lower portion there was a place where the dirt had been brushed off. There were a number of small spots on the upper half of the lens. The left...
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