Hennessey v. Moynihan

Field, J. The plaintiff brought an action of tort against Roy Wood and another against William P. Moynihan to recovór damages for personal injuries alleged to have been received by her by reason of being struck and knocked down by a motor truck owned by Wood and operated by Moynihan. The cases were tried together and the plaintiff had verdicts in both. The case against Moynihan is here upon his exceptions to the refusal of [167] the trial judge to direct a verdict for him and to grant certain requests for rulings, and to a ruling requested by the plaintiff. The evidence tended to show that at about one o’clock, p.m., January 25, 1927, when the plaintiff, with another woman, was crossing Haymarket Square, Boston, in a northerly direction, from the subway entrance to the sidewalk in front of the Belief Hospital, she was injured by being struck and knocked down by a motor truck which was being driven by the defendant across the square in a westerly direction from Blackstone Street to Canal Street. There was evidence that the street was wet and slippery as if there had been rain in the morning, though the sun was shining at the time of the accident; that the defendant sounded his horn, shouted and applied the brakes; that the wheels locked; and that the truck then skidded to the right and struck the plaintiff. The testimony as to the speed of the truck and that as to the distance which it skidded were conflicting, but the jury could have found that the speed was from fifteen to eighteen miles an hour and that the truck skidded eighteen feet. The defendant testified that he knew there were “a great number of people, men, women and girls out to lunch at that time walking in and around Haymarket Square and those various side streets,” that it was “a general area where anybody driving an automobile has got to be pretty careful where they are going,” and that there was “a continuous line of traffic coming across this square.” He testified that he was driving his truck through the traffic which was going north into North Washington Street and was passing through an opening in the southbound traffic — there being no car at his right going south “for a brief space” — when he saw the plaintiff and her companion about twenty feet in front of him. He testified further that he knew that the sudden application of the brakes might cause the truck to skid, and that if it had been going slower he could have stopped it. Though the “mere fact that the automobile skidded was not evidence of negligence” (Lambert v. Eastern Massachusetts Street Railway, 240 [168] Mass. 495, 499, Lonergan v. American Railway Express Co. 250 Mass. 30, 35), the jury would have been warranted in finding that, under the circumstances existing, the defendant was negligent in operating the truck at the speed shown, and that such negligence was the proximate cause of the plaintiff’s injury. The defendant was not entitled to the ninth ruling requested by him limiting his liability to negligence at the time the emergency arose since the evidence warranted a finding that his negligence created the emergency, and the request of the defendant for the ruling that there was no evidence of negligence on his part was refused rightly. Rasmussen v. Whipple, 211 Mass. 546, 548. Tripp v. Taft, 219 Mass. 81, 84. Lambert v. Eastern Massachusetts Street Railway, 240 Mass. 495, 500. The request of the defendant for a ruling that the plaintiff was not in the exercise of due care also was refused rightly. The plaintiff testified that before she left the sidewalk at the subway entrance she “looked to see if there was any traffic coming this way”; that she saw traffic coming in front of her up and down North Washington Street, but none from her right, the direction of Blackstone Street; that she could not see Blackstone Street from the sidewalk at the subway entrance, but could do so from a point ten to twenty feet away; that she “was walking along at a fairly reasonable rate of speed” and as she “continued to walk . . . looked both ways constantly” and was aware that traffic from North Washington Street was “coming around.and passed in back of” her, but she saw no truck or vehicle coming from the right at any time before she was struck, did not see the truck operated by the defendant and heard no warning horn or shout. Though the plaintiff was bound by this testimony, the jury would have been warranted in finding that the defendant had not sustained the burden of proving contributory negligence. The plaintiff was entitled to rely to some extent on the belief that the defendant would not operate the truck negligently. Gauthier v. Quick, 250 Mass. 258, 261. Davicki v. Flanagan, 250 Mass. 379, 380-381. Barrett v. Checker Taxi Co. 263 Mass. 252. The [169] failure of the plaintiff to hear a horn or a shout did not require a finding of negligence on her part, for the jury were not required to find, in accordance with the defendant’s testimony, that he sounded a horn or shouted. Nor, even if this testimony was believed, does it follow necessarily that she failed to listen. Furthermore, in view of the conditions of traffic shown by the evidence, it cannot be said as matter of law that the plaintiff, because of the fact admitted by her that she did not see the truck operated by the defendant as it approached, did not look, looked carelessly, or in any respect failed to exercise due care. The defendant’s thirteenth and fourteenth requests for rulings to the contrary, therefore, were refused rightly. Barrett v. Checker Taxi Co. 263 Mass. 252, 254, 255. See also Morrissey v. Boston & Maine Railroad, 216 Mass. 5, 6; Pawloski v. Hess, 253 Mass. 478, 480. This is not a case like Pigeon v. Massachusetts Northeastern Street Railway, 230 Mass. 392, where negligent conduct of the plaintiff is the only reasonable explanation of circumstances undisputed or shown by her testimony. See page 396. Gibb v. Hardwick, 241 Mass. 546, also is distinguishable. In Swetzoff v. O’Brien, 226 Mass. 438, and in O’Hare v. Gloag, 243 Mass. 533, relied on by the defendant, the accident happened before the passage of St. 1914, c. 553. It follows that the motion for a directed verdict was denied rightly. If, by reason of the defendant’s exception to the giving of the plaintiff’s thirteenth request for rulings, any question is before us as to whether the provision of G. L. c. 90, § 14, amended by St. 1925, c. 305, requiring an operator, upon approaching a pedestrian, to “sound a timely signal with his bell, horn or other device for signalling,” which was repealed by St. 1928, c. 166, is applicable in this case, no error is disclosed. This statutory provision dealt with substantive rights rather than with procedure, and, consequently, remained applicable to the case of an accident occurring, as here, before its repeal, though the trial took place after such repeal. Hanscom v. Malden & Melrose Gas Light Co. 220 Mass. 1. Rosenthal v. Liss, 269 Mass. [170] 373, 376-377. The cases of Smith v. Freedman, 268 Mass. 38 and Thornes v. Meyer Store Inc. 268 Mass. 587 are distinguishable since they deal with a procedural statute. Exceptions overruled.