Powers v. Loring

Decision Date01 January 1919
Citation231 Mass. 458,121 N.E. 425
PartiesPOWERS v. LORING.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Norfolk County; Richard W. Irwin, Judge.

Action by Edith E. Powers, administratrix, against Atherton Loring. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

Robert T. Healey and Arthur D. Healey, both of Boston, for plaintiff.

Whipple, Sears & Ogden, of Boston, for defendant.

RUGG, C. J.

There was testimony tending to show that at half past 6 o'clock on the evening of Columbus Day, 1916, while leading two horses on the right of the middle of a much-traveled highway near the town of Weymouth, the plaintiff's intestate, walking on the left of the horses but still to his right of the middle of the way, fatally injured by being struck by an automobile approaching from behind and driven in the same direction at the rate of about 26 miles an hour by an agent of the defendant engaged in the business of the latter. The road in general was straight, with a slight bend near the place of the accident. The night, was pleasant but dark. The deceased carried no lantern. The action is brought under R. L. c. 171, § 2, as amended by St. 1907, c. 375, to recover damages for causing this death.

[1] It could not have been ruled as matter of law that the deceased was not in the exercise of due care and that the burden of proof of contributory negligence resting on the defendant under St. 1914, c. 553, § 1, had been sustained. Apart from the effect of that statute, there was evidence that the deceased was in the exercise of due care. Emery v. Miller, 231 Mass. 243, 120 N. E. 655. It cannot be ruled as matter of law that failure of a pedestrian upon a main highway to carry a lantern after dark, even though leading horses, is want of due care. Manifestly, in view of said chapter 553, no such ruling could have been made. Mercier v. Union Street Railway Co., 230 Mass. 397, 119 N. E. 764. St. 1914, c. 182, relative to lights on vehicles, has no pertinency.

[2] It requires no discussion to demonstrate that it might have been found negligent on the part of one driving an automobile at night to overtake and run into a pedestrian traveling so far as appears continuously in a direct path on the right of a road, without veering to one side or the other.

[3] The defendant's request for an instruction, to the effect that said chapter 553 was not of itself sufficient to prove the due care required of the...

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13 cases
  • Lawson v. Fordyce
    • United States
    • Iowa Supreme Court
    • 11 d2 Dezembro d2 1945
    ... ... are: Dozier v. Woods, 190 Ala. 279, 67 So. 283, 284 (a woman ... on foot busy urging on a cow and calf); Powers v. Loring, 231 ... Mass. 458, 121 N.E. 425, 426 (a man afoot leading two horses ... to the right of the center of the road); Wells v. King, 219 ... ...
  • Shapiro v. Lyon
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 27 d5 Novembro d5 1925
    ...to support the defense of contributory negligence. Burns v. Oliver Whyte Co., Inc., 231 Mass. 519, 121 N. E. 401;Powers v. Loring, 231 Mass. 458, 121 N. E. 425. Apart from the Statute of 1914, c. 553, § 1, now G. L. c. 231, § 85, there was evidence that the intestate was in the exercise of ......
  • De Furia v. Mooney
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 28 d5 Outubro d5 1932
    ...247 Mass. 552, 556, 142 N. E. 831, and cases cited), he was entitled, under G. L. (Ter. Ed.) c. 231, § 85 (see Powers v. Loring, 231 Mass. 458, 460, 121 N. E. 425), to the benefit of the presumption that he exercised the care to be expected of a child of his age under like conditions. See D......
  • Wilcox v. Herbst
    • United States
    • Wyoming Supreme Court
    • 10 d2 Abril d2 1956
    ...Street Railway Co., 230 Mass. 397, 119 N.E. 764. St.1914, c. 182, relative to lights on vehicles, has no pertinency.' Powers v. Loring, 231 Mass. 458, 121 N.E. 425, 426. A determination of defendant Herbst's negligence cannot be made from a consideration of the light problem alone. See Bomb......
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