Nelligan v. Fontaine

• Citation: 225 Mass. 329
• Parties: HENRY NELLIGAN, administrator, v. JOSEPH FONTAINE.
• Decision Date: 02 December 1916
• Court: United States State Supreme Judicial Court of Massachusetts

225 Mass. 329

HENRY NELLIGAN, administrator, v. JOSEPH FONTAINE.

Supreme Judicial Court of Massachusetts, Bristol.

December 2, 1916

October 23, 1916.

Present: RUGG, C.

J., LORING, BRALEY PIERCE, & CARROLL, JJ.

Negligence, Motor vehicle, In use of highway. Practice, Civil, Conduct of trial: judge's charge, remark of attorney, Exceptions.

At the trial of an action against the owner of a motor car for causing the death of a boy less than five years of age, there was evidence warranting findings that the motor car was being driven by the defendant's son acting as his agent, that, going north, it turned to the west to pass a vehicle on the east side of the street, then turned to the east side of the street to pass an ice wagon that was standing near the middle of the street facing south, then turned to the west again and ran over the boy about eighteen feet back of the ice wagon that no warning signal of the approach of the defendant's car was given, that the speed of the car was not slackened although the driver knew that "there was danger around an ice wagon," and that as he passed the ice wagon the driver turned his head over his left shoulder and spoke to someone whom he called Fred.

Held, that a finding that the driver was negligent was warranted.

An exception, by a defendant in an action of tort for causing death, to a statement of the presiding judge in his charge, "If the accident happened as claimed by the plaintiff," the jury "might have a right to find for the plaintiff," must be overruled when the parts of the charge preceding and following the remark are not reported in the bill of exceptions.

An exception to a question put to a witness must be overruled where it does not appear in the bill of exceptions that the question was answered.

An exception to a remark to the jury made by an attorney in examining a witness must be overruled where it appears that the judge in his charge instructed the jury to disregard the remark entirely.

TORT by the administrator of the estate of Henry Nelligan for causing the death of the plaintiff's intestate on November 9, 1912 when he was run over by a motor car driven by an employee of the defendant. Writ dated December 30, 1912.

In the Superior Court the case was tried before Hamilton, J. The material evidence and conduct of the trial are described in the opinion. The jury found for the plaintiff in the sum of $1,500; and the defendant alleged exceptions.

The case was submitted on briefs. D. R. Radovsky, for the defendant.

J. W. Cummings, C.

R. Cummings & J.

W. Nugent, for the plaintiff.

CARROLL, J. The plaintiff's intestate, a child less than five years of age, was struck and killed by an automobile driven by the defendant's son while acting as his agent. It was admitted that the deceased...