Millay v. Town Taxi, Inc.

Braley, J. We perceive no error in the refusal of the judge to give the defendant’s requests, in so far as they were not covered by the instructions, which singled out certain aspects of the evidence for special comment and emphasis; and the two remaining requests, that on all the evidence the plaintiff could not recover, and that there is no evidence “of any negligence of the defendant’s agents or servants,” present the remaining and substantial questions for decision. Hicks v. New York, New Haven & Hartford Railroad, 164 Mass. 424. Hopkins v. O’Leary, 176 Mass. 258. Commonwealth v. Min Sing, 202 Mass. 121. The jury would have been warranted in finding that the plaintiff, while in mid afternoon of a day in June, walking through Haymarket Court toward Avery Street in the city of Boston, “looking straight ahead with an unobstructed view to Avery Street . . . heard some one call” him. He thereupon turned to the west side of the alley and stopped where one Purdy was standing on the sidewalk and as he stood in the public way near the sidewalk talking with Purdy a taxicab driven by the defendant’s employee backed into the alley without giving any warning of its approach, struck and knocked him down, backed on to his chest and then was driven away. It could not have been ruled as matter of law that the plaintiff was careless. It was for the jury to say whether his acts when [317] he was injured were naturally incident to ordinary human affairs, and consistent with an intention on his part to continue upon and over the street for the usual purposes of travel. Britton v. Cummington, 107 Mass. 347. Hunt v. Salem, 121 Mass. 294. He also had a right to assume that travellers by automobile would not, without giving some possible warning, run him down. Hennessey v. Taylor, 189 Mass. 583, 586. It is true that the defendant offered evidence tending to show that the driver backed the cab a short distance into the street, and then stopped as another automobile “was coming down” the street, but on receiving a signal from the driver to continue, he blew his horn, and backed slowly into Haymarket Court watching through the rear window of the cab. And when he came to the place where the plaintiff and Purdy were standing, the plaintiff suddenly stepped back placing one foot in the street and the other foot on the sidewalk so that he stood within the path of the cab, which struck and rolled him over. The credibility of the witnesses however was for the jury who could accept the plaintiff’s account of the accident and reject the explanation of the defendant. Hennessey v. Taylor, supra. Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314, 319. The case was properly submitted to the jury and the exceptions must be overruled. So ordered.