Patrick v. Deziel

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: CROSBY
• Citation: Patrick v. Deziel, 223 Mass. 505, 112 N.E. 223 (Mass. 1916)
• Decision Date: 07 April 1916
• Parties: PATRICK v. DEZIEL.

223 Mass. 505

112 N.E. 223

PATRICK

v.DEZIEL.

Supreme Judicial Court of Massachusetts, Middlesex.

April 7, 1916.

Exceptions from Superior Court, Middlesex County; Patrick M. Keating, Judge.

Action by Louis A. Patrick, by his next friend, against Omer Deziel, to recover for personal injuries. Verdict for the plaintiff for $550, and defendant excepts. Exceptions overruled.

Jas. J. Kerwin and Jas. C. Reilly, both of Lowell, for plaintiff.

Henry V. Charbonneau, of Lowell, for defendant.

CROSBY, J.

The plaintiff, a boy twelve years old, was struck by an automobile operated by the defendant upon a public highway in Lowell, and received the injuries for which this action is brought.

The highway is seventy-two feet wide between the curbstones and runs in a northerly and southerly direction; and in the center there is a single street railway track. The accident happened on June 28, 1915, at about half past four o'clock in the afternoon.

The plaintiff, who was rolling a large iron hoop along the sidewalk on the easterly side of the street, crossed the street diagonally in a southerly direction, and while in the gutter on the westerly side of the street was struck by the automobile.

The evidence as to the circumstances of the accident was conflicting. The defendant testified and offered evidence to show that, while he was operating his machine at a rate of six miles an hour, the plaintiff suddenly ran in front of, and only about two feet from the machine and was struck before the defendant could stop his car. If the jury believed this evidence, it is plain there could be no recovery. Apparently the jury did not credit this description of the accident.

The plaintiff offered evidence to show that he was rolling his hoop on the extreme right hand or westerly side of the street, near the gutter; that he did not see the automobile which was going in the same direction; that he was struck from behind; and that there were no other vehicles upon the street to interfere with or prevent the defendant avoiding a collision.

1. The plaintiff testified that he crossed the track to get on the right side of the road, and ‘looked back and front and saw nothing coming, that he did not see the automobile when he looked back.’

The plaintiff was not a trespasser upon the highway because he was rolling a hoop, and the defendant had no right to run over him. O'Brien v. Hudner, 182 Mass. 381, 65 N. E. 788;Slattery v. Lawrence Ice Co., 190 Mass. 79, 76 N. E. 459. Under St. 1914, c. 553, which applies to this case, the plaintiff is presumed to have been in the exercise of due care, and contributory negligence on his part is an affirmative defense to be set up in the answer, and proved by the defendant.

In view of the width of the street, the fact that the accident occurred upon the extreme right side of the way, and the precautions which the plaintiff testified he took to avoid injury, we do not think it could be ruled that the defendant had overcome the presumption created by the statute, or proved...