Rogers v. Phillips

• Decision Date: 27 June 1910
• Citation: 206 Mass. 308,92 N.E. 327
• Parties: ROGERS v. PHILLIPS (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

206 Mass. 308

92 N.E. 327

ROGERS v. PHILLIPS (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

June 27, 1910

COUNSEL

Herbert Parker and Henry H. Fuller, for plaintiff.

Curtis G. Metzler and William L. Pullen, for defendants.

OPINION

HAMMOND J.

The collision occurred upon a straight, broad, smooth road in open daylight. There were no other travelers, either vehicles or pedestrians, to obstruct the view or distract the attention. The whole road for the time being was for the use of each of the vehicles in question, subject only to the right of the other; and yet the collision occurred. Was there evidence of due care of the deceased who was upon the bicycle? That is the only question raised upon this record.

The case is close. The burden was upon the plaintiff to show due care of the deceased. And she does not meet this burden simply by showing that there was an accident and that thereby the deceased was injured. It is to be noted however that this is not a case where the physical movements of the injured leading up to the accident are purely of conjecture, as in a class of cases of which Ralph v. Cambridge Electric Light Co., 200 Mass. 566, 86 N.E. 922, is a type, nor where the movements are such as by their very nature to show negligence, as in the familiar class of cases where it is held that entering upon a railroad track at a highway crossing without looking or listening is of itself evidence of negligence; nor yet where an approaching car is so near that stepping upon the track is plainly a careless act. On the contrary there is considerable evidence as to the movements of the respective parties. While it is unquestioned that the collision would not have occurred if the deceased had not attempted to cross the road, yet it cannot be ruled as a general proposition of law that a traveler is necessarily negligent because he attempts to cross a street even without first looking or listening to ascertain whether a vehicle is approaching. Such a traveler has a right in the absence of anything to the contrary to assume that other persons using the highway will exercise a proper degree of care toward him. Bowser v. Wellington, 126 Mass 391; Purtell v. Jordan, 156 Mass. 573, 31 N.E. 652; Hennessy v. Taylor, 189 Mass. 583, 79 N.E. 224, 3 L R. A. (N. S.) 345, and cases cited. When there is a collision upon the highway, the question whether there is negligence on the part of either...