Mulroy v. Marinakis

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: SANDERSON
• Citation: Mulroy v. Marinakis , 271 Mass. 421, 171 N.E. 670 (Mass. 1930)
• Decision Date: 06 June 1930
• Parties: MULROY v. MARINAKIS et al.

271 Mass. 421

171 N.E. 670

MULROY

v.MARINAKIS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 6, 1930.

Exceptions from Superior Court, Suffolk County; Wilford D. Gray, Judge.

Action by Marcus J. Mulroy, administrator, against Alex Marinakis and others. Verdict for plaintiff, and defendants bring exceptions.

Exceptions overruled.

P. J. Madigan, of Boston, for plaintiff.

G. W. Abele, of Boston, for defendants.

SANDERSON, J.

This is an action of tort for death of the plaintiff's intestate, resulting from a collision with a truck operated by the defendant Marinakis at about 7 P. M. on November 30, 1926. Upon the evidence the jury could have found that at the time of the accident the truck was being used in the business of the defendants, as partners, and was proceeding in a southerly direction on a street in Jamaica Plain. Shortly before the accident the driver was obliged to turn to his left to pass an automobile parked close to the sidewalk near the northerly end of the garage from which the plaintiff's intestate came, and at the time of the accident the truck was being driven with its left wheels between the south or outbound car tracks and with the right wheels between the nearer rail and curbing. At a point in front of the garage and a short distance south of the ramp leading to it the truck collided with the plaintiff's intestate, who had come down the ramp and was crossing the street diagonally to his right to a white post on the opposite side of the street in order to take an inbound electric car. The accident happened about seventy feet beyond the parked automobile which the defendants' automobile had passed. The plaintiff's intestate was a man somewhat hard of hearing, between sixty-five and seventy years of age, who worked at the garage, and was leaving for home. Rain had been falling during the day, the weather was drizzling and dark at the time of the accident, and the street was slippery. The width of the street at the point of the collision was forty-two and one half feet, the distance from the westerly curbing to the nearer rail of the outbound track being fourteen feet and from the easterly curbing to the nearer rail of the inbound track thirteen and one half feet. The street for a distance of two or three hundred feet on both sides of the garage was straight and level.

There was testimony tending to prove that the intestate was struck when he was about in the middle of the outbound car tracks at a point about sixteen and one half feet from the westerly curb which he had left, and that the truck was going ‘fast and not slow’; that after the collision the two rear wheels were up on the curb on the further side of the street, partly on the sidewalk, the truck having gone some distance beyond the point of contact and then turned around and almost faced in the opposite direction from that in which it had been going; that after the collision the deceased was lying between the inbound tracks; and that there is no crosswalk in front of the garage.

The defendant Marinakis...