Parsons v. Ryan

• Decision Date: 07 January 1960
• Citation: 340 Mass. 245,163 N.E.2d 293
• Parties: Gertrude L. PARSONS et al. v. James RYAN. Gertrude L. PARSONS et al. v. GLOUCESTER SEAFOODS CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 293

163 N.E.2d 293

340 Mass. 245

Gertrude L. PARSONS et al. v. James RYAN.

Gertrude L. PARSONS et al. v. GLOUCESTER SEAFOODS CORPORATION.

Supreme Judicial Court of Massachusetts, Essex.

Argued Dec. 9, 1959.

Decided Jan. 7, 1960.

Joseph L. Tauro, Lynn, for plaintiffs.

Andrew R. Linscott, Lynn, for defendants.

Before WILKINS, C. J., and SPALDING, COUNIHAN, WHITTEMORE, and CUTTER, JJ.

WHITTEMORE, Justice.

On August 6, 1956, at about 1:15 p. m., the minor plaintiff, age three (hereinafter the plaintiff), was observed by two neighbors lying injured on the paved way of Eastern Avenue, Gloucester, opposite the head of Cross Street, which joins Eastern Avenue, an east-west 'main highway,' on its southerly side, and is about 100 or 120 yards in length. Mrs. Mary Martin, when at the front window of her house at 9 Eastern Avenue, the second house from the southwest corner of Cross Street, between 1 and 1:30 p. m., heard a little cry and 'so she looked out.' She saw the plaintiff in the street and saw Mrs. Lucretia R. Damon going toward her. She also then saw an automobile, a vehicle later established to be owned by the corporate defendant and driven by the defendant Ryan, stopped at the head of Cross Street; 'two thirds of the car was into Cross Street'; she saw the automobile back up and start down Eastern Avenue. Mrs. Damon, then living at 2 Cross Street on the corner, between 1:15 and 1:30 p. m., on August 6, went out on her porch, which faced Eastern Avenue, and saw the plaintiff lying in the street. She 'went across the street to the child,' saw that she was badly hurt, looked in the direction of Mrs. Martin's house and saw an automobile, the corporate defendant's automobile, moving slowly down Eastern Avenue, and shouted 'Did you hit this child,' or, as Mrs. Martin recalled, 'Come back here, you just hit this child.' The automobile was then in front of Mrs. Martin's window, ten to twelve feet from the curb on her side, on the 'left hand' (southerly) side of the road. Ryan heard the call, looked back, stopped, or nearly stopped, and then drove off, and did not answer. Mrs. Martin saw no automobiles parked near by on either side of Eastern Avenue, and 'when she first saw the little girl she saw no cars moving in the vicinity'; Mrs. Damon did not see any other automobiles near by. None was parked in the area, and 'there was no other traffic on Eastern Avenue while she was there with the child.' This much of what happened can be taken as established, viewing the evidence favorably for the plaintiff as we do in judging the rightness of the judge's action in directing verdicts for the defendants. But there is no direct evidence of causation or negligence.

The movements of the automobile on Eastern Avenue and Cross Street, prior to the moment when it was observed about to back into Eastern Avenue from Cross Street, are described in the bill of exceptions only in Ryan's testimony, in the auditor's report, and in consistent testimony of a police officer of what Ryan told him. According to this evidence Ryan had come down Eastern Avenue at a speed of from twenty to twenty-five miles per hour and had made a left hand turn into Cross Street, to go through it. Ryan testified that 'to make the corner' he slowed to ten or fifteen miles per hour. 'After he had gone 100 or 200 feet into Cross Street,' as the auditor found, Ryan saw a truck which blocked the narrow street. Ryan then backed the automobile to the point at which it was observed by Mrs. Martin. He testified, and the auditor found, that he stopped to allow traffic to go by.

Ryan testified that when stopped at the head of Cross Street he looked out the rear window and saw a child in the street and a woman running across to pick it up. The auditor found that Ryan had been no child in or near the street as he approached Cross Street, and the police officer testified that Ryan had said in his employer's office, when cautioned to tell the truth, and after prior evasive and false statements, that he did not know he was in an accident, and when asked if it was possible that he could have hit the child without knowing it he said 'It is possible, but I don't think I did,' and when asked if he had seen the child in the street had answered 'that he did see the child in the street after he went by but he didn't see the child in front of him,' 'that as he was driving along Eastern Avenue, he saw no child in the street, but that he saw a child in the street later'; that it was 'none of his business'; and that he saw the child from the rear of his automobile. The officer could not say whether Ryan told him that this was when 'he was on Cross Street or Eastern Avenue.'

Ryan was overtaken by the police about 1:30 or 1:40 p. m. There were no brush marks on the dust on the automobile or other marks when it was then examined.

The testimony permitted the conclusion that the plaintiff had been hit by an automobile.

The officers, in plain clothes and in a vehicle without police insignia, stopped the automobile with Ryan in it on East Main Street near the foot of Cross Street and walked around the automobile. Ryan asked why the automobile had been stopped ('What's the story Chief?')...