Creedon v. Galvin

De Courcy, J. It is not in dispute that on May 31, 1914, at about half past two o’clock in the afternoon, while the plaintiff, Creedon, was walking on Adams Street in Quincy, he was struck and seriously injured by a motor car owned and operated by the defendant. The road was straight and level; and no other person or vehicle was near by. The testimony as to how the collision occurred was contradictory. On the evidence most favorable to the plaintiff the jury could find that he was crossing Adams Street diagonally; that the defendant saw him more than one hundred and fifty feet ahead, yet proceeded at a speed of twenty-five or thirty miles an hour and gave no warning of his approach except by blowing his horn when he was about five feet from the plaintiff; and that the car struck Creedon with such momentum that thereafter he was unconscious for nine .days and delirious for several weeks. St. 1909, c. 534, § 14, as amended by St. 1910, c. 605, § 5, expressly provides: “Upon approaching a pedestrian who is upon the travelled part of any way and not upon a sidewalk, . . . every person operating a motor vehicle shall slow down and give a timely signal with his bell, horn or other device for signalling.” The foregoing facts,warranted the jury in finding that the defendant was violating the statute, and was otherwise negligent. Rasmussen v. Whipple, 211 Mass. 546. Rogers v. Phillips, 217 Mass. 52. Newton v. McSweeney, 225 Mass. 402. The issue of the plaintiff’s due care rightly was submitted to the jury. He has no recollection of what occurred at the time of the accident. It could be found that he had started to cross Adams Street from the westerly side where there was no sidewalk. The street in front of him was unobstructed, and his course was in plain view from any vehicle that might enter the highway. There — 143 — was no testimony that he looked behind for approaching vehicles; but that is not conclusive on the question of his due care even at common law. Hennessey v. Taylor, 189 Mass. 583. Booth v. Meagher, 224 Mass. 472. Moreover St. 1914, c. 553, which provides that the plaintiff shall be presumed to have been in the exercise of due care, and that contributory negligence on his part shall be an affirmative defence, required the submission of this issue to the jury, on the facts here disclosed. Nye v. Louis K. Liggett Co. 224 Mass. 401. The testimony of the witness Murphy as to the rate of speed of the automobile, stated in miles per hour, was properly admitted. Johnston v. Bay State Street Railway, 222 Mass. 583. Exceptions overruled.