Nicholson v. Babb

• Decision Date: 28 October 1939
• Citation: 23 N.E.2d 103,304 Mass. 216
• Parties: NICHOLSON v. BABB.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 216

23 N.E.2d 103

NICHOLSON

v.BABB.

Supreme Judicial Court of Massachusetts, Middlesex.

Oct. 28, 1939.

Exceptions from Superior Court, Middlesex County; F. B. Greenhalge, Judge.

Action by Ellen G. Nicholson, executrix, against William F. Babb for death of plaintiff's testate. Verdict for plaintiff. On defendant's exceptions to the denial of his motion for a directed verdict.

Exceptions overruled.H. J. Dixon and J. H. Dixon, both of Boston, for plaintiff.

D. H. Fulton, of Boston, for defendant.

COX, Justice.

In May, 1935, at about 1 o'clock in the morning, the plaintiff's testate was struck by an automobile that was being operated by the defendant, in a northerly and intown direction, at the rate of about 30 miles per hour on Columbus Avenue, in Boston. The jury returned a verdict for the plaintiff, and the exception of the defendant is to the denial of his motion for a directed verdict.

Although the evidence was conflicting, especially as to where the deceased was in the street when struck, the jury could have found that at the time of the injury there were two other persons sitting on the seat of the automobile with the defendant and a woman sitting on the lap of one of these two. Immediately after the injury the defendant's breath smelled ‘like intoxicating liquors,’ and he ‘hesitated in his speech.’ There was evidence that he had had two glasses of beer earlier in the evening. Columbus Avenue at the place of the injury is 54 feet wide from curb to curb. After striking the deceased, the defendant continued on for about 600 feet where he was stopped by a police officer who, in his automobile, had been following the defendant. When this officer asked the defendant why he ‘didn't stop and pick up the man,’ the defendant said, ‘I didn't know I hit anybody,’ whereupon one of the women in the car said, ‘I told you that. I told you at the time you struck this man you should have picked him up.’ The right front headlight of the defendant's automobile was broken, the right front mudguard was bent, the radiator was bent back about 2 or 3 inches, and there was some glass in the road ‘like the lens of a headlight within three feet of the body in the center of the road.’ A witness who had just crossed from the easterly to the westerly side of Columbus Avenue going in the same direction that the deceased travelled, turned at the moment he heard the impact and saw the automobile driving by and could see ‘the man's body lying in the center of Columbus Avenue.’ The defendant's automobile was ‘a little to the left of center of street, and the body to the right of the center * * *.’ There were no vehicles parked on the easterly side of the avenue from a point opposite the point of impact to the south, from which direction the defendant's automobile came, but there was one automobile and possibly two parked on the easterly side to the north of this point. There was no automobile ahead of the defendant. One of the deceased's shoes was near his body, and the other was about 10 feet to the south, that is, ‘it was in the intersection.’ The night was fair and there were ‘the regular street lights in that section with no lights out.’ As bearing upon the deceased's movements, it could have been found that he was standing on the easterly side of Columbus Avenue at the corner of Columbus Square and that he ‘walked off the curbstone’ followed by one of the witnesses who looked both ways but saw no automobile approaching until after the deceased was struck; that the deceased was walking at a ‘regular, ordinary pace’ just ahead of the witness. The wife of the deceased testified that after the injury her husband told her that ‘he got off the curbing, looked up and down, kept looking up and down as he walked across the street and got struck.’ Aside from the testimony that a police officer was driving on Columbus Avenue and was following the defendant's automobile, and that the latter was coming from the direction of Massachusetts Avenue, there is nothing in the record to show the distance on Columbus Avenue that the defendant's automobile had travelled prior to the injury.

It was a question of fact for the jury in the circumstances disclosed whether the deceased was injured through the negligence of the defendant. Learned v. Hawthorne, 269 Mass. 554, 559, 561, 169 N.E. 557;Mulroy v. Marinakis, 271 Mass. 421, 424, 171 N.E. 670;Griffin v. Feeney, 279 Mass. 602, 604, 181 N.E. 710;Fayard v. Morrissey, 281 Mass. 166, 168, 183 N.E. 154;Conrad v. Mazman, 287 Mass. 229, 233, 234, 191 N.E. 765;Stowe v. Mason, 289 Mass. 577, 581, 194 N.E. 671. See Shapiro v. Union Street Railway Co., 247 Mass. 100, 104, 141 N.E. 505;Seymour v. Dunville, 265 Mass. 78, 164 N.E. 79;Pease v. Lenssen, 286 Mass. 207, 190 N.E. 18;Hall v. Shain, 291 Mass. 506, 509, 197 N.E. 437. Compare Carpenter v. Anderson, Mass., 17 N.E.2d 898.

It could not have been rightly ruled as matter of law that the deceased was contributorily negligent. This was a question of fact, the burden of proof resting upon the...