Ames v. Madonna

Pierce, J. This is an action of tort for injuries sustained by the plaintiff, at about 6 p.m. on June 26, 1920, as a result of being struck by the defendant’s automobile near the tollgate, so called, just beyond the Forest Hills Station of the Boston Elevated Railway. The evidence warranted a finding that when a surface car upon which the plaintiff had been riding came to a stand [272] still at a white post, which was a regular stop, the plaintiff stepped off the car, facing the direction in which the car was going, and was immediately struck in the back and on the back of his right hip and dragged underneath the running board of the automobile; and that the first knowledge the plaintiff had of an automobile being in the vicinity was when he was struck. The evidence warranted the further finding that the defendant had owned the automobile about four or five days; that it was a high powered automobile; that he had not been driving a high powered automobile before; that it was going fourteen or sixteen miles an hour at the time of the accident; that the defendant had been following the car and was “ back of the car from away up; ” that when the car got within one hundred and fifty or two hundred feet from the place of the accident it was going twenty miles an hour; then it slowed down to about eight or ten miles an hour, and the defendant slowed with the car to about twelve miles an hour; that he drove the automobile by the side of the car while it was stopped at a white post and struck the plaintiff as he came out of the car and while he was “ probably a foot or two from the car.” There was evidence on behalf of the defendant that the left hand side of the automobile was between eight and ten feet from the right hand side of the car when the plaintiff came out of the moving car, took three steps and went into the front of the left mudguard of the automobile. The defendant at the close of the testimony moved for a directed verdict, and also made certain requests for instructions to the effect that there is no evidence that the defendant was negligent, and that the plaintiff was not in the exercise of due care. The jury found for the plaintiff; and the defendant saved his exceptions to the'refusal to rule and instruct in accordance with his requests. It is plain that the trial judge properly could not have directed a verdict for the defendant or given any of the requested instructions. Upon the evidence the plaintiff could have been found to have been struck by the automobile as he came forth from the car concurrently with the act of alighting, and before he had passed from the side of the car. [273] In addition, the plaintiff had the right to assume if the car was stopped that no automobile would pass the door within eight feet of the side of the car. St. 1909, c. 534, § 14. G. L. c. 90, § 14. Hennessey v. Taylor, 189 Mass. 583, 586. We think the question of the due care of the plaintiff was for the jury, without resort to G. L. c. 231, § 85. The evidence that the defendant followed the car, adjusting the speed of the automobile to that of the car, and passed it, while it was at a standstill at a post where passengers are commonly received and discharged, at a high rate of speed and within eight feet of the side of the car, was sufficient evidence with the other facts of circumstance to justify the action of the judge in refusing to give the requested instructions, and in submitting the question of the defendant’s negligence to the jury. Hartnett v. Tripp, 231 Mass. 382, 384. Compare, also, McGourty v. DeMarco, 200 Mass. 57; Foster v. Curtis, 213 Mass. 79. It follows that the entry must be, Exceptions overruled.