Murphy v. Armstrong Transfer Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: KNOWLTON, J.
• Citation: Murphy v. Armstrong Transfer Co., 167 Mass. 199, 45 N. E. 93 (Mass. 1896)
• Decision Date: 24 November 1896
• Parties: MURPHY v. ARMSTRONG TRANSFER CO.

167 Mass. 199

45 N.E. 93

MURPHY v. ARMSTRONG TRANSFER CO.

Supreme Judicial Court of Massachusetts, Suffolk.

November 24, 1896

COUNSEL

Hanny

F. Naphen and William J. Miller, for plaintiff.

M.F Dickinson, Jr., and Moses Holbrook, for defendant.

OPINION

KNOWLTON J.

In this case the evidence of negligence on the part of the defendant's driver is inconsiderable, and the evidence of due care on the part of the plaintiff is still less. From the printed report of the evidence in the bill of exceptions, it seems probable that the negligence of the plaintiff contributed more largely to the accident than negligence of the defendant's servant; but we cannot say as a matter of law, that there was no evidence that the driver was negligent. He testified that he did not see the plaintiff until the collision occurred. He was driving a hack drawn by two horses, at a slow trot, at a little after 6 o'clock in the evening of October 4, 1893, southward along Hudson street, in Boston, across Harvard street. He testified that the lanterns on his back were lighted, and there was evidence tending to show that there were lights in grocery stores on both corners of Hudson and Harvard streets, on the northerly side of Harvard street. The plaintiff was crossing Hudson street on the crosswalk on the southerly side of Harvard street .. The evidence tended to show that there was no other team in the vicinity, and the jury might have found that he was negligent in not looking before him before he crossed Harvard street, so carefully as to discover the plaintiff before his horses struck her. The plaintiff testified that she was going westward, along the southerly side of Harvard street, in the usual way, looking before her; and that, when she got a little more than one-half way across Hudson street, she was struck, and thrown down on the crossing, and, when she recovered her consciousness, she was under the feet of the horses, on the right-hand side,--that is, on the westerly side of the pole. There was evidence tending to show that she was mistaken in regard to the place where she found herself, in her account of the collision; but whether she was or not was a question of fact for the jury. If they believed her testimony, it indicated that she had passed beyond the center of the line of travel of the team before the collision, and that the horse at the right of the driver ran against her.

It has repeatedly been held that...