Sooserian v. Clark
| Decision Date | 25 June 1934 |
| Parties | ALFRED SOOSERIAN v. FRANK C. CLARK. SAME v. TOWN TAXI, INC. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
April 4, 1933.
Present: RUGG, C.
J., CROSBY, PIERCE FIELD, & DONAHUE, JJ.
Negligence Contributory, In use of way.
At the trial of an action for personal injuries, the plaintiff testified that intending to cross a street, on which two parallel lines of automobiles were parked on the side where he was, at a place where there was no cross walk, he walked to the rear of one of the automobiles parked in the farther line, whence he could see to his right down the street about twenty-five feet; that he then saw two lines of automobiles approaching from his right at a moderate rate of speed on the opposite side of the street; that, as he was stepping out from behind the parked automobile and was "perhaps four feet" therefrom, he saw an automobile operated by the defendant flash right out" of the nearer line of approaching automobiles, travelling at a fast rate of speed; that it struck the plaintiff "at that instant"; that he had not previously seen the defendant's automobile; and that he heard no horn sounded. There also was evidence that the defendant's automobile turned out of line about fifty or sixty feet from the plaintiff and proceeded toward him at twenty-five to thirty-five miles an hour and about three feet from the line of parked automobiles nearer to it; and that when it stopped after striking the plaintiff it was on its left side of the street. Held, that it could not properly have been ruled as a matter of law that the defendant had sustained the burden of proving the plaintiff guilty of contributory negligence.
TWO ACTIONS OF TORT. Writs dated, respectively, March 14, 1929, and April 1, 1929.
The actions were tried together in the Superior Court before Thayer, J. Material evidence is stated in the opinion. In each action, the judge denied a motion that a verdict be ordered in the defendant's favor, there was a verdict for the plaintiff in the sum of $2,700, and the defendant alleged an exception.
R. S. Teeling, (F.
R. Murphy with him,) for the defendants.
R. J. Walsh, for the plaintiff.
These are two actions of tort, tried together, to recover compensation for personal injuries received by the plaintiff when he was struck by a taxicab owned by the defendant Town Taxi, Inc. and operated by the defendant Clark. It was admitted that at the time of the accident the individual defendant, as agent of the corporate defendant, was operating the taxicab on its business. Motions for directed verdicts on the grounds that there was no evidence of negligence of the defendants and that upon all the evidence the plaintiff was not in the exercise of due care and his negligence contributed to the accident were denied, and the defendants excepted. There were verdicts for the plaintiff against both defendants. The defendants waived their exceptions to the denial of directed verdicts on the ground that there was no evidence of the defendants' negligence.
The motions for directed verdicts were denied rightly.
It could not have been ruled as matter of law that on the testimony of the plaintiff, by which he is bound except as he is entitled to the benefit of any more favorable explanation of the accident presented by the evidence, the burden resting on the defendants of proving contributory negligence on the part of the plaintiff had been sustained. G. L. (Ter. Ed.) c. 231, Section 85. Joughin v. Federal Motor Transportation Co. 279 Mass. 408 , 409.
The accident occurred on October 22, 1928, at about 10:30 A.M., when the plaintiff was attempting to cross from west to east and the taxicab was travelling north on Tremont Street, in Boston between...
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