Roach v. Hinchcliff

• Citation: 101 N.E. 383,214 Mass. 267
• Parties: ROACH v. HINCHCLIFF; ROACH v. WINTON MOTOR CARRIAGE CO.
• Decision Date: 01 April 1913
• Court: United States State Supreme Judicial Court of Massachusetts

214 Mass. 267

101 N.E. 383

ROACH

v.HINCHCLIFF;

ROACH

v.WINTON MOTOR CARRIAGE CO.

Supreme Judicial Court of Massachusetts, Suffolk.

April 1, 1913.

Exceptions from Superior Court, Suffolk County; Hugo A. Dubuque, Judge.

Actions by Edward Roach, administrator, against Frederick A. Hinchcliff and against the Winton Motor Carriage Company. Verdict for plaintiff, and defendant in each case brings exceptions. Overruled.

The following are the requests for instructions referred to in the opinion:

‘1. As matter of law this defendant was not negligent and plaintiff cannot recover.

‘2. There is no evidence that this defendant was negligent and plaintiff cannot recover.’

Wm. Flaherty, of Boston, for plaintiff.

M. O. Garner, of Boston, for defendant Winton Motor Carriage Co.

Wm. M. Richardson and Wm. P. Evarts, both of Boston, for defendant Hinchcliff.

DE COURCY, J.

These are two actions of tort under St. 1907, c. 375, to recover for the death of Henry Evans, the plaintiff's intestate. At the time of the accident Evans was walking on the easterly side of Columbus avenue beyond Roxbury Crossing, when an automobile driven by the defendant Hinchcliff ran upon the sidewalk behind him and struck him with such force that his death resulted without conscious suffering. That he was in the exercise of due care is not disputed.

[1] 1. Considering first the exceptions in the action against the individual defendant, we are of opinion that the issue of his negligence was for the jury. There was evidence that the street was wide, straight, level and dry; no other vehicles were in the highway, and it was a clear morning. As to the speed of the automobilethere was conflicting testimony, but one witness placed it at 18 miles and another as high as 25 miles an hour; and it could be found that after going upon the sidewalk the car ran a distance of 30 or 40 feet, with no diminution of speed, before it struck the deceased. There was some trouble with the engine that caused it to ‘skip’ when running at low speed, but this did not interfere with the operation of the brake or of the steering gear; and the jury could find that if the car had been under proper control it could have been stopped after the tires had exploded and before the deceased was reached. In fact they well might find that it was due in whole or in part to excessive speed that the automobile ‘skidded’ against the curbstone and caused the tires to burst and the car to leave the roadway.

[2] St. 1909, c. 534, § 16, which the presiding judge read to the jury had no application to the facts in evidence. Nevertheless the defendants were not harmed thereby, as the law set forth in the portion of the statute to which attention was called did not differ from the common law as to reasonable and proper speed, ‘having regard to traffic and the use of the way and...