Rienzo v. Goldfarb

• Decision Date: 19 October 1926
• Citation: 257 Mass. 272,153 N.E. 784
• Parties: DI RIENZO v. GOLDFARB.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

257 Mass. 272

153 N.E. 784

DI RIENZO

v.GOLDFARB.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 19, 1926.

Exceptions from Superior Court, Worcester County; R. W. Irwin, Judge.

Action of tort by Gelardino Di Rienzo, by next friend, against Jacob Goldfard, to recover for personal injuries in an automobile accident. Verdict for plaintiff, and defendant excepts. Exceptions overruled.J. H. Meagher, Emil Zaeder, J. L. Bianchi, and H. T. George, all of Worcester, for plaintiff.

McGrath & MacCarthy, of Worcester, for defendant.

CROSBY, J.

The plaintiff, a boy 14 years old, was struck by an automobile driven by the defendant on Shrewsbury street, in Worcester. The street runs in an easterly and westerly direction, with double street car tracks in the center of a reservation and an 18-foot cement highway on each side thereof. The evidence tended to show that westbound automobiles traveled on the north side of the reservation, and those east bound traveled on the south side; also that before the accident traffic regulations had been adopted by the city of Worcester. Certain sections of these regulations were admitted in evidence, subject to the defendant's exception, but there is nothing in the record to show what those sections contained. The plaintiff contended that the regulations provided that west bound traffic was confined to the highway north of the reservation and east bound traffic should pass on the south side, but it does not appear from the record that any such regulation, order or ordinance was in existence at the time of the accident. Accordingly, the trial judge in his charge instructed the jury as follows:

‘Now gentlemen, after conferring with the attorneys in the case. the court has decided to submit this case to the jury for its determination as an ordinary highway case without regard to the orders, traffic orders and ordinances that have been introduced here. And so, gentlemen, you will disregard in your consideration and determination of the rights and wrongs of the parties in this case any traffic rules that have been presented to you and discussed by attorneys to you. I hope you thoroughly appreciate the change that is made in that respect, and it is imposed upon you by the court to disregard whether or not the defendant was on the right side of the traveled way of Shrewsbury street or not, and to consider the case as though nothing had been laid before you in that respect.’

The case was submitted to the jury upon the assumption that there was no order or ordinance regulating traffic on Shrewsbury street.

The plaintiff testified in substance that he and two other boys were playing ball on the southerly sidewalk of the street south of the reservation; that the ball rolled over the curb and the plaintiff and a boy named Cattaccio walked to the curb to recover it; that two automobiles went by abreast of each other and the plaintiff held Cattaccio back and said he would go after the ball; that the plaintiff looked toward the west and, seeing that no automobiles were coming from that direction, ran across the street ‘always looking toword Washington Square’ (toward the west) in the direction of the ball, which was about 3 feet away from the car tracks, between the sidewalk which the plaintiff left and the outside rail of the east bound car track; that he stooped to pick up the ball and just as he got his hands on it ‘everything went black.’ There was evidence that the ball went diagonally across the sidewalk and street in a northwesterly direction. The plaintiff further testified that at no time did he look to his right; that the nearest machine coming toward him from his left was about 300 yards away; that he did not look to his right because he did not expect automobiles could come from that direction.

There was evidence that the defendant's automobile was traveling in a westerly direction on the north side of the street located south of the reservation, at a speed of about 20 miles an hour; that no signal or horn was sounded; that the defendant was looking toward the side of the road at the side streets and signs; that he was on the south side of the reservation because he wanted to get to East Worcester street, which he understood connected with Shrewsbury street on its south side; that the defendant's automobile was the only one on the southerly side of the street going in a westerly direction; that it traveled about 17 or 18 feet after striking the plaintiff before it stopped; and that it was daylight when the accident occurred.

The defendant offered evidence tending to show that the plaintiff ran from behind the two automobiles going in an easterly direction, and into the left front mudguard of the defendant's automobile, and that he was about 2 feet away when the defendant first saw him. Upon this conflicting evidence it could not properly have been ruled that the plaintiff could not recover.

[2] The question, whether the plaintiff was in the exercise of such care and prudence as an ordinarily careful boy of his age would be expected to exercise in attempting to cross the street in the circumstances disclosed was for the jury. Beale v. Old Colony Street Railway, 196 Mass. 119, 81 N. E. 867.Rasmussen v. Whipple, 211 Mass. 546, 548, 98 N. E. 592.Hennessey v. Boston Elevated Railway, 211 Mass. 524, 98 N. E. 578.Angelary v. Springfield Street Railway, 213 Mass. 110, 99 N. E. 970.

[3][4][5] It could not have been ruled that the plaintiff was not in the exercise of due care because he did not look to the right before starting to cross the street. Crimmins v. Armstrong Transfer Express Co., 217 Mass. 155, 157, 104 N. E. 457. He testified that:

‘He did not look to his right * * * because he did not expect automobiles could come from...