Wright v. Carlson
| Decision Date | 29 December 1942 |
| Citation | 312 Mass. 584,45 N.E.2d 840 |
| Parties | CLIFFORD L. WRIGHT, administrator, v. ELIZABETH C. CARLSON, administratrix, (and three companion cases [1]). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
November 5, 1942.
Present: FIELD, C.
J., DONAHUE, QUA COX, & RONAN, JJ.
Negligence, Motor vehicle, Use of way, Contributory, Violation of law Coasting. Way, Public: coasting. Pleading, Civil, Answer.
A finding of negligence of the operator of a taxicab which on an icy and slippery street struck a child who coasted on a sled into the street from an adjacent slope concealed from the operator's view "to a certain extent" was warranted by evidence of unreasonable and improper speed of the taxicab and failure of the operator to see the child seasonably.
A defendant who in his answer set up contributory negligence, but not violation by the plaintiff of an ordinance respecting coasting, in defence to an action resulting from the defendant's motor vehicle striking the plaintiff while he was coasting, was entitled to have violation of the ordinance considered only on the issue of contributory negligence.
Evidence, that a child lying on his stomach on a sled at the top of a slope was pushed by another child, coasted down the slope into a street with his feet dragging all the way, and was struck in the street by a motor vehicle, warranted a finding that the coasting in the street was wholly involuntary on his part and did not require a ruling that he was guilty of contributory negligence although coasting on that street was prohibited by an ordinance.
FOUR ACTIONS OF TORT. Writs in the First District Court of Eastern Middlesex dated August 31, 1938.
Upon removal to the Superior Court, the actions were tried before Greenhalge, J. There were verdicts for the plaintiffs and the defendants alleged exceptions.
R. W. Cornell, for the defendants. W. G. Guernsey, for the plaintiffs.
These are four actions of tort, two of which are brought to recover damages for the death and conscious suffering of the plaintiff's intestate, his daughter, a girl of eight years, against the administratrix of one Carlson, the owner of a taxicab, and its operator, the defendant Rose, who was Carlson's agent, the other two actions being against the same defendants to recover consequential damages incurred by the father. The injuries to the girl, as a result of which it could have been found that she died after suffering consciously, were sustained in the early afternoon of December 31, 1938, on Orris Street, in Melrose, in front of what is known as the Crosby estate.
Orris Street runs substantially east and west, and, at the time of the girl's injuries, an ordinance of Melrose prohibited coasting on any street or portion thereof, unless such street had been designated for such purpose by the superintendent of public works. At that time streets had been so designated but Orris Street was not one of them. The front of the Crosby house is about one hundred feet from Orris Street, and the intervening lawn is sloping, the house standing on a knoll with a terrace in front of it. A driveway, which runs diagonally across the lawn from the garage which is situated in the rear and to the west of the house, ends at Orris Street at the extreme easterly end of the Crosby premises which have a frontage on the street of about one hundred twenty feet. The land fronting on Orris Street and westerly of the Crosby premises rises more abruptly from the Orris Street sidewalk than it does from the sidewalk to the Crosby house. A point where a right angle line drawn from the center of the Crosby house intersects the sidewalk is about fifty-five feet west of the easterly line of the driveway. The rise to the west of the Crosby property interferes "to a certain extent" with the view of the "sloping lawn" of an operator of a motor vehicle travelling to the east on Orris Street. The jury took a view.
The jury could have found that on the day in question at about two o'clock the plaintiff's intestate and her sister, who was eleven years old, together with three younger boys who were between the ages of five and seven, began to coast down the Crosby driveway on their sleds. When they reached the sidewalk, they would turn their sleds into the banking of snow that was about two feet high on the outer edge of the sidewalk, or go along the sidewalk itself and stop without going into the street. At times they coasted along the slope of the lawn, crossing the driveway, but did not go into the street. Just before the injuries were sustained, the plaintiff's intestate was on the terrace near the house lying on her stomach on a sled, which was the position used in coasting. She and the sled were facing in the direction of the street in a line that would traverse the driveway. One of the boys who was standing behind the sled stooped down and pushed the plaintiff's intestate on the sled, and she started down the hill with her feet dragging in the snow all the way down, "but the sled continued on across the driveway and out across the sidewalk into the street [at a point about five feet east of the driveway] and was struck by the right rear wheel of the defendant Carlson's taxi." The plaintiff's intestate's sister, who, at the time the sled was pushed, was seated "partially up the slope on the lawn," testified that the boy had not pushed her sister before this, nor had he "given her a shove," and that she did not hear her ask him to "shove her."
Orris Street was "very icy and very slippery" at the time, and Carlson's taxicab was travelling at the rate of about twenty miles an hour. There was evidence from the operator of a truck that the taxicab passed him when he was about fifty yards from the corner of Sears Avenue, which is about one hundred seventy-five feet from the easterly line of the driveway, and that when he was about fifteen or twenty feet west of Sears Avenue, after the taxicab had passed him, he saw two children, one with a sled, standing at the "bottom of the hill" at the entrance to the Crosby driveway, between the sidewalk and the gutter. He observed no change of speed of the taxicab. He saw the plaintiff's intestate crossing the sidewalk into the street dragging her feet. The taxicab stopped about sixty feet to the east of the driveway, "headed into the left [northerly] curb."
...
To continue reading
Request your trial