Swetzoff v. O'Brien

• Decision Date: 07 April 1917
• Citation: 115 N.E. 748,226 Mass. 438
• Parties: SWETZOFF v. O'BRIEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 438

115 N.E. 748

SWETZOFF

v.O'BRIEN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 7, 1917.

Exceptions from Superior Court, Suffolk County; Robert F. Raymond, Judge.

Action by Louis Zwetzoff, p. p. a., against Michael W. O'Brien and others. Judgment for plaintiff, and defendants except. Exceptions sustained, and judgment for defendants.

MUNICIPAL CORPORATIONS k705(10)-USE OF STREETS-INJURY FROM AUTOMOBILE-CONTRIBUTORY NEGLIGENCE.

Plaintiff, a boy of 15, using the highway as a playground, and who made no effort to avoid an automobile or to save himself from harm, except to look both ways before he was injured when there was nothing to prevent his seeing the automobile for 400 feet if he had looked, and who ran at full speed across the street while at play, was guilty of contributory negligence defeating a recovery for injury from being struck by the automobile.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. ss 1515, 1517.]A. K. Cohen and H. A. Mintz, both of Boston, for plaintiff.

Chas. S. Knowles, of Boston, for defendants.

CARROLL, J.

On August 21, 1912, the plaintiff was struck by an automobile owned by one O'Brien and driven by Kulda, an employé of the defendant, at the intersection of Columbia road, and Devon street, Dorchester. The plaintiff was then about fifteen years of age. At the time of the accident and for half an hour previously, he, with four other children, was playing ‘puss in the corner.’ Trees on the side of the street were used as goals. One of the trees was at the southwesterly corner of Devon street and Columbia road, another was directly opposite on the ‘grass plot occupied by the rails of the railroad.’ Just before he was struck the plaintiff was at one of these trees, the evidence of the defendant tending to show he was near the tree on the sidewalk, the plaintiff's evidence tending to show he was near the tree on the grass plot.

The automobile had been in the defendant's garage for the purpose of being repaired. It was running westerly along Columbia road at the rate of ten to sixteen miles an hour; no horn was blown as it approached the corner of Devon street. The plaintiff and another boy started at the same time and both ran into the street. According to the defendant's witness, the plaintiff ran directly into the forward part of the automobile and was not run over; the witness for the plaintiff testified he was thrown forward by the front of the machine and then run over. The ‘game was played with no order or system, except signals from one boy to another, but that each ran where and as he pleased and that each ran as fast as he could, and the purpose of the game was to reach one of the goals before it was occupied by the ‘puss.” There was an unobstructed view of the automobile for four hundred feet.

The plaintiff did not testify. It was his contention that because of the injuries, he had no recollection of the way in which the accident happened. Two witnesses testified that at the time of the accident ‘they were looking out for automobiles,’ and just before the plaintiff started to run across the...