O'Keefe v. United Motors Service, Inc.

By the Court. This is an action to recover compensation for personal injuries sustained by a pedestrian upon a [604] public way through being struck by a motor truck admittedly operated by a servant of the defendant acting within the scope of his authority. The accident occurred at about a quarter past six on March 4, 1922, on a busy street in Boston. The street was slippery and slushy, and it was raining. The plaintiff testified in substance that before leaving the sidewalk she looked both ways on the street for motor vehicles and, not seeing any nearby, started across and was struck. Other evidence tended to show that the truck of the defendant, being driven at the rate of thirty miles an hour on its left side of the street, struck the plaintiff when she had advanced from the curb into the street about twelve feet. It could not have been ruled on all the evidence that the plaintiff was not in the exercise of due care. Whether her evidence was so contradictory as to be unworthy of credit, was for the jury. Gauthier v. Quick, 250 Mass. 258. Newman v. Hill, 250 Mass. 578. Kaminski v. Fournier, 235 Mass. 51. The speed of the truck, its position on the street, and all the other evidence in its aspect most favorable to the plaintiff, required submitting to the jury the question of the negligence of the defendant. Pawloski v. Hess, ante, 478, and cases there collected. Emery v. Miller, 231 Mass. 243. G. L. c. 90, § 14. The mere happening of the accident was no evidence of negligence. Reardon v. Boston Elevated Railway, 247 Mass. 124. There was much more than that in the case at bar. The case is distinguishable from Rizzittelli v. Vestine, 246 Mass. 391, and similar decisions relied on by the defendant. Exceptions overruled.