Query v. Howe

Sanderson, J. In this action of tort the plaintiff sought to recover for personal injury, alleging in the first count negligence of the defendant and in the second wilful, wanton and reckless conduct of the defendant in operating an automobile. At the close of the evidence the judge, subject to the plaintiff’s exception, allowed the defendant’s motion for a verdict in his favor on the first count; and subject to the defendant’s exception permitted the case to go to the jury on the second. After a verdict for the plaintiff was returned on this count, the trial judge subject to the plaintiff’s exception ordered that a verdict for the •defendant be entered upon count two of the declaration in accordance with leave reserved under G. L. c. 231, § 120. The plaintiff, a boy about eleven years of age, and other boys were sliding down hill in Worcester in the centre of Parker Street toward an intersecting street called Mason Street. There was evidence that when the plaintiff reached the latter street he looked to his right and saw a truck operated by the defendant about forty-five or fifty feet away coming on Mason Street. The plaintiff did not know whether the truck was coming fast or slow. He “slued” to the left and went up on the embankment at the corner [95] of the two streets. There was evidence that the truck turned to the right a little into Parker Street, to avoid hitting a boy who was sliding on a sled behind the plaintiff, and then turned back into Mason Street, and in doing this the rear wheel of the truck went over the plaintiff when he was on the embankment about three, four or five feet from the corner, having rolled off the sled; that the embankment was five feet high; that he was in Parker Street when picked up and that “it happened all at once — it was all very quick.” Parker Street was described as a narrow street and there was evidence tending to prove that when the truck reached it the plaintiff was upon the embankment. A witness called by the plaintiff testified that the truck when one hundred yards from the intersection of the two streets was travelling at the rate of about forty miles per hour; that the driver’s head was turned toward a man at his side with whom he appeared to be talking as the truck approached Parker Street. After striking the plaintiff the truck went about thirty feet before stopping. Upon all the evidence the plaintiff was off the travelled part of the way when struck but the evidence was somewhat conflicting as to whether he was near it or as far from it as four or five feet. As the truck approached the intersection, the corner at the driver’s left was described as a “blind one.” An ordinance of the city of Worcester, prohibiting persons from coasting or sliding down, across, in or along any of the streets or highways upon any hand sled except in places under such restrictions as the board of aldermen shall prescribe, was introduced in evidence. Parker Street was not one on which permission to slide had been granted. The bill of exceptions states that the case was presented upon the assumption that Parker Street was a street or highway within the ordinance, and no one has suggested the contrary. If the plaintiff received his injury while coasting upon a street from which coasters were excluded by the ordinance, his violation of law would bar recovery for injuries caused by negligence of the defendant. Boyd v. Ellison, 248 Mass. 250. Widronack v. Lord, 269 Mass. 238. The reason for this rule is that the violation of that kind of an ordinance [96] is as matter of law a proximate contributing cause of the injury suffered. The plaintiff contends that when injured his violation of law was at an end and that it could not be found on the evidence that he was at that time within the limits of the street. But we are of opinion that, even though the plaintiff was not upon his sled when injured and if it be assumed that he had reached a point outside the limits of the street, his illegal act in sliding upon the street was so intimately connected with his injury as a proximate cause that as matter of law he is barred from recovery on the first count based upon negligence. See Wallace v. Merrimack River Navigation & Express Co. 134 Mass. 95; Bourne v. Whitman, 209 Mass. 155, 167. The direction of a verdict for the defendant on the first count was right. The defendant in approaching the intersection of the streets at a speed of forty miles per hour and apparently talking to a companion, and in turning the truck into Parker Street and back into Mason Street as described in the evidence, could be found to be negligent, but the evidence would not justify a finding of wilful, wanton and reckless conduct. He had a right to assume that boys would not be coasting upon Parker Street where coasting was prohibited. Labay v. Leiken, 252 Mass. 579, 581. The knowledge or state of mind of the defendant with reference to the probability of injury to another is an important matter to be considered in determining whether his conduct toward the plaintiff is wilful, wanton and reckless. Prondecka v. Turners Falls Power & Electric Co. 238 Mass. 239, 243. Foley v. Wesson Memorial Hospital, 246 Mass. 363, 365. To establish such conduct the plaintiff must prove that the wrongdoer inflicted injury intentionally or was “so utterly indifferent to the rights of others that he acts as if such rights did not exist.” Wentzell v. Boston Elevated Railway, 230 Mass. 275, 277. Romana v. Boston Elevated Railway, 218 Mass. 76. It did not appear on the evidence considered in the aspect most favorable to the plaintiff that the defendant was wantonly reckless in exposing the plaintiff to danger, nor did his conduct partake of the nature of a wilful, intentional wrong. See Freeman v. United Fruit Co. 223 Mass. 300, 302. It was [97] not disputed that the movements of the track after the coasters were seen by the defendant were made in an effort to avoid injuring one of them. Wanton, wilful and reckless conduct could not be inferred from those movements. Upon all of the evidence proof of an essential element required in law to make a wanton, wilful and reckless act was absent, and the verdict entered for the defendant on the second' count was right. Exceptions overruled.