Di Rienzo v. Goldfarb

Crosby, J. The plaintiff, a boy fourteen years old, was struck by an automobile driven by the defendant on Shrews-bury Street, in Worcester. The street runs in an easterly and westerly direction, with double street car tracks in the centre of a reservation and an eighteen-foot cement highway on each side thereof. The evidence tended to show that west bound automobiles travelled on the north side of the reservation, and those east bound travelled on the south side; also, that before the accident traffic regulations had been adopted by the city of Worcester. Certain sections of these regulations were admitted in evidence, subject to the defendant’s exception, but there is nothing in the record to show what those sections contained. The plaintiff contended that the regulations provided that west bound traffic was confined to the highway north of the reservation and east bound traffic should pass on the south side, but it does not appear from the record that any such regulation, order or ordinance was in existence at the time of the accident. Accordingly, the trial judge in his charge instructed the jury as follows: “Now, gentlemen, after conferring with the attorneys in the case, the court has decided to submit this case to the jury for its determination as an ordinary highway case without regard to the orders, traffic orders and ordinances that have been introduced here. And so, gentlemen, you will disregard in your consideration and determination of the rights and wrongs of the parties in this case any traffic rules that have been presented to you and discussed by attorneys to you. I hope you thoroughly appreciate the change that is made in that respect, and it is imposed upon you by the court to disregard whether or not the defendant was on the right [proper?] side of the travelled way of Shrewsbury Street or not, and to consider the case as though nothing had been laid before you in that respect.” The case was submitted to the jury upon the assumption that there was no order or ordinance regulating traffic on Shrewsbury Street. [279] The plaintiff testified in substance that he and two other boys were playing ball on the southerly sidewalk of the street south of the reservation; that the ball rolled over the curb and the plaintiff and a boy named Cattaccio walked to the curb to recover it; that two automobiles went by abreast of each other and the plaintiff held Cattaccio back and said he would go after the ball; that the plaintiff looked toward the west and, seeing that no automobiles were coming from that direction, ran across the street “always looking toward Washington Square” (toward the west) in the direction of the ball which was about three feet away from the car tracks, between the sidewalk which the plaintiff left and the outside rail of the east bound car track; that he stooped to pick up the ball and just as he got his hands on it “everything went black.” There was evidence that the ball went diagonally across the sidewalk and street in a northwesterly direction. The plaintiff further testified that at no time did he look to his right; that the nearest machine coming toward him from his left was about three hundred yards away; that he did not look to his right because he did not expect automobiles could come from that direction.. There was evidence that the defendant’s automobile was travelling in a westerly direction on the north side of the street located south of the reservation, at a speed of about twenty miles an hour; that no signal or horn was sounded; that the defendant was looking toward the side of the road at the side streets and signs; that he was on the south side of the reservation because he wanted to get to East Worcester Street which he understood connected with Shrewsbury Street on its south side; that the defendant’s automobile was the only one on the southerly side of the street going in a westerly direction; that' it travelled about seventeen or eighteen feet after striking the plaintiff before it stopped; and that it was daylight when the accident occurred. The defendant offered evidence tending to show that the plaintiff ran from behind the two automobiles going in an easterly direction, and into the left front mudguard of the defendant’s automobile, and that he was about two feet away when the defendant first saw him. Upon the entire [280] evidence it could not properly have been ruled that the plaintiff could not recover. The question, whether the plaintiff was in the exercise of such care and prudence as an ordinarily careful boy of his age would be expected to exercise in attempting to cross the street in the circumstances disclosed, was for the jury. Beale v. Old Colony Street Railway, 196 Mass. 119. Rasmussen v. Whipple, 211 Mass. 546, 548. Hennessey v. Boston Elevated Railway, 211 Mass. 524. Angelary v. Springfield Street Railway, 213 Mass. 110. It could not have been ruled that the plaintiff was not in the exercise of due care because he did not look to the right before starting to cross the street. Crimmins v. Armstrong Transfer Express Co. 217 Mass. 155, 157. He testified that “he did not look to his right . . . because he did not expect automobiles could come from that direction.” There was evidence that ordinarily west bound automobiles did not travel on the southerly side of the reservation. This evidence was competent for the consideration of the jury in passing upon the plaintiff’s conduct. His contributory negligence was an affirmative defence and the burden of proving it rested on the defendant. G. L. c. 231, § 85. Daris v. Middlesex & Boston Street Railway, 241 Mass. 580. Whether the defendant was negligent was also a question of fact to be determined upon all the evidence, with the burden of proof resting upon the plaintiff. If, as the jury could have found, the defendant was travelling upon this city street where, as the evidence showed, there was a large amount of traffic, at a speed of about twenty miles an hour, without sounding a horn or giving any other signal of his approach, a finding of negligence on his part was /not unwarranted. G. L. c. 90, § 17, provides that “No person operating a motor vehicle on any way shall run it at a rate of speed greater than is reasonable and proper, having regard to traffic and the use of the way and the safety of the public.” Rasmussen v. Whipple, supra. The defendant’s tenth request that he was under no obligation to sound his horn as he was not “approaching an. intersecting street or a pedestrian,” G. L. c. 90, § .14, was [281] rightly refused. A person operating a motor vehicle upon a public way may be found to be lacking in due care if he fails to give a timely signal with his horn or other device, if reasonable care on his part requires such signal to be given to protect other travellers from being injured by him at places on the highway other than those specifically enumerated in the statute. The cases cited by the defendant to show that the plaintiff was lacking in due care, and that there was no evidence of negligence on his part, are distinguishable in their facts from those which could have been found in the case at bar. It remains to consider the exceptions to the admission and exclusion of evidence and to the rulings given and refused. The witness Kell was asked in direct examination, “the children looked toward you and then what?” The answer was, “Started across the street. I increased my speed to stop this car coming from the east, and as I —.” The defendant excepted to the refusal of the trial judge to strike out the answer. The answer was responsive and the exception must be overruled. The statement of the same witness that after taking the plaintiff to the hospital he returned to the scene of the accident and took the defendant to the police station, if not responsive, did not prejudice the substantial rights of the defendant. There was nothing to show that he had been placed under arrest, or that he did not voluntarily accompany the officer to the station for the purpose of reporting the accident. Officer Clifford in his direct examination was asked by the plaintiff to relate a conversation which he had with the defendant shortly after the accident. This was admitted subject to exception of the defendant. The judge correctly ruled that the plaintiff was entitled to prove that conversation. The exception to the admission of the testimony of the city clerk of Worcester respecting the adoption by the city of certain traffic regulations or ordinances became immaterial when the judge submitted the case to the jury “as an .ordinary highway case without regard to the orders, traffic orders [282] and ordinances that have been introduced . . . The instructions given and hereinbefore referred to fully protected the rights of the defendant. The question admitted in the cross-examination of the defendant, “How long prior to May 6,1923, had you driven a car? ” which was afterwards limited to the city of Worcester, if incompetent, did not harm the defendant, in view of the answer, which was, “Six years.” Lang v. Boston Elevated Railway, 211 Mass. 492, is distinguishable from the present case. A similar question there was held incompetent and prejudicial as it was offered to show that the defendant was negligent. If, as the jury could have found from the answer, the defendant had driven a car for six years before the accident, it could hardly be contended by the plaintiff that he was incompetent or negligent because of inexperience. The exceptions to the requests for rulings and to the charge may be disposed of briefly. The defendant’s exceptions to the refusal of the judge to give his requests 11 to 38, inclusive, cannot be sustained. Nearly all of them related to alleged violations by the defendant of certain city orders or ordinances; these instructions became inapplicable in view of the instructions given which directed the jury to disregard any evidence of such orders or ordinances, or their violation by the defendant. Requests 40, 43, 44, 45 and 62 were rightly refused. The instructions given were adequate and correct and fully covered the questions the jury were required to determine. The testimony of the plaintiff that he did not expect any automobiles or traffic to come from the east was substantially in accord with his other testimony and was in explanation of his failure to look in that direction. It was admitted without exception and was competent, and the reference to it by the j udge in his charge was not erroneous. The references in the charge to “the excitement and impetuosity of youth” and to the plaintiff’s age at the time of the accident and at the time of the trial three years later were proper. Exceptions overruled.