Whalen v. Mutrie
| Decision Date | 04 January 1924 |
| Citation | 247 Mass. 316,142 N.E. 45 |
| Parties | WHALEN v. MUTRIE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Henry T. Lummus, Judge.
Action of tort by Mary J. Whalen against Patrick B. Mutrie, arising out of fatal injuries sustained by Joseph F. Whalen on a public highway in the city of Boston through a collision with an automobile truck owned by the defendant. After verdict for plaintiff, motion to have the court enter a verdict for defendant was allowed, and plaintiff brings exceptions. Exceptions overruled.
In an action for death of pedestrian run down by a motor truck, the burden of proof to show the defendant's negligence is upon the plaintiff, and such negligence cannot be inferred merely from the happening of the accident.
In an action for death of pedestrian on street, testimony that when witness saw truck it was going ‘fast’ was too indefinite, without anything to indicate the rate of speed, to warrant a finding of negligence.
In action for death of pedestrian on street, evidence held insufficient to warrant a finding of negligence on the part of defendant's truck driver.S. E. Duffin, of Boston, for plaintiff.
C. L. Allen, of Boston, for defendant.
On May 9, 1921, the plaintiff's intestate received fatal injuries, from a collision with the defendant's automobile truck, on Dorchester avenue, a public highway in the city of Boston. The truck, at the time of the accident, was operated by an employee of the defendant, engaged in his employer's business. The jury viewed the scene of the accident.
There was evidence that the deceased was 60 years of age, and of good health, hearing and eyesight. The only testimony concerning the accident came from one witness, who testified that, as he was crossing Dorchester avenue, he saw the plaintiff's intestate killed, about half past 7 o'clock in the morning; that he did not see him until he was under the truck; that ‘the right front wheel’ had gone over him and ‘a hind wheel pressed on him’ and the truck was stopped; that he didn't see where Whalen came from or where he was going, but he saw him fall. In response to a question from the court, ‘Did you see Whalen before the instant that he was hit?’ he said, ‘No, sir;’ and in answer to the question, ‘Where was Whalen the first sight of him you had?’ the witness stated, ‘The first time I see him he was falling and the truck on top of him.’ He further testified that the morning was clear; that he saw people crossing the street, but no other automobiles were moving; that as the defendant's truck came towards the witness and after it passed him, its direction was not changed and no horn was blown; ‘that as the witness was crossing the street * * * he kept his eyes on the truck;’ I started off from the sidewalk and walked ordinary way, but as soon as I see this truck come fast I just skipped like that and turned my head and look to see.'
No evidence was offered by the defendant, who moved for a directed verdict. The jury found for the plaintiff, and the trial judge reserved leave, with the assent of the jury, under G. L. c....
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...moment of the collision; it could not have been found that the failure to blow the horn contributed to the accident." Whalen v. Mutrie, 247 Mass. 316, 142 N. E. 45, 46. Where a boy ran into the street, "without looking either way," no recovery. Foster v. Rinz, 202 Mich. 601, 168 N. W. 420, ......
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