Quinlan v. Hugh Nawn Contracting Co.

Jenney, J. In the evening of November 7, 1916, at about nine o’clock, the plaintiff with three companions left his place of employment, and walked through an intersecting street to Summer Street Extension in Boston. Because of information that the draw in the bridge in that street over North Point Channel was obstructed by a street railway car which had fallen through the draw while open, it was decided to go along that street, in an easterly direction and by a more circuitous route, in order to [193] get home. It did not appear whether Summer Street Extension was much frequented at the place and hour of the accident hereinafter described. Where the accident happened the street was seventy-six feet wide between the curbings. From that point, it extended easterly twelve hundred and thirty-one feet without curve or angle, and there was no grade which obstructed the view for that distance. A bridge carried the roadway over railroad tracks for the last eight hundred and fifty-one feet of this distance; but it did not appear in the record whether the bridge interfered with the view. There was evidence that the four walked eastward along the northerly sidewalk in the direction of South Boston. When they were nearly opposite A Street, they started to cross Summer Street Extension at almost a right angle, but “facing slightly in the direction of South Boston.” While so crossing, the plaintiff, who with one companion was following the other two, was hit by the defendant’s automobile. The plaintiff testified that he had no recollection of how the accident occurred except that he tried to save himself by hanging on to the automobile; and that he had no memory whether he saw it before the accident, or whether there was anything to obstruct his sight. His companions testified in substance that upon attempting to cross, they severally looked in the direction of South Boston, and saw no automobile; that they did not see it until it was about fifteen feet from them; that it was on the southerly street railway track, which was at the left of the centre of the travelled way as one comes from South Boston; and that the automobile was going at the rate of forty miles an hour. One testified that the automobile “swerved a little toward him and struck the plaintiff.” The happening of the accident as described by the witnesses called by the defendant presented an entirely different picture. The case is here, after a verdict for the plaintiff, on the defendant’s exceptions to a portion of the charge and to the refusal of the presiding judge to give two rulings, all other exceptions having been waived. The exceptions do not raise any question as to the sufficiency of the evidence to warrant a finding of negligence of the operator of the automobile. 1. The first request asked for a ruling that, upon all the evidence, [194] the plaintiff was guilty of contributory negligence. This properly could not have been given. Under the circumstances set forth in this record, it could not have been ruled as matter of law that the plaintiff was negligent. The case in this aspect is within the reasoning of Hennessey v. Taylor, 189 Mass. 583, Jeddrey v. Boston & Northern Street Railway, 198 Mass. 232, Creedon v. Galvin, 226 Mass. 140, and Emery v. Miller, 231 Mass. 243. It could not be held as matter of law that the defendant had sustained the burden of proof as to the affirmative defence of contributory negligence. St. 1914, c. 553. Duggan v. Bay State Street Railway, 230 Mass. 370, 379. 2. The only other refusal to rule, to which an exception is now urged, is: "If, before the plaintiff started to cross the street, he looked and did not see the automobile, and if you find that the automobile must have been within his view, then, as a matter of law, he looked carelessly and if that contributed to his accident the plaintiff is not entitled to recover.” This request singled out and emphasized part only of the salient features of the case. It disregarded other facts which might have been found on the evidence and which related to the plaintiff’s due care, in that, among other things, it omitted all reference to the conduct of the plaintiff’s companions and assumed that the plaintiff did look for and did not see the automobile, when the record was silent as to such conduct on his part. It omitted all reference to the speed and course of the automobile. It postulated the plaintiff’s care simply on what he did and what he saw “before . . . [he] started to cross the street.” This request properly was refused. Neafsey v. Szemeta, ante, 160, and cases cited. 3. The remaining exception relates to a part of the charge to the jury. When this exception was taken, the judge further instructed the jury in substance that what he had said was by way of illustration and that it had not been intended to refer to the case on trial, because "the testimony would not warrant . . . [him in] making . . . [it] as a statement in this case.” The right of the judge to illustrate the application of a principle of law by stating it in its application to cases not like that under consideration is plain, and unless it positively appears that the power has been so used as to result in prejudice, its exercise is not reviewable. Here the rights of the defendant were fully [195] protected by clear explanation and limitation. Commonwealth v. Johnson, 199 Mass. 55, 63. Draper v. Cotting, 231 Mass. 51. Exceptions overruled.