Tamagno v. Conley

Lummus, J. This is an action of tort in two counts, the first to recover for the death of the plaintiff's intestate, Anthony Tamagno, under G. L. (Ter. Ed.) c. 229, § 5, as amended, and the second under G. L. (Ter. Ed.) c. 229, § 6, as amended, to recover for his conscious suffering. At the close of the evidence the judge ordered verdicts for the defendant, and the plaintiff excepted. The evidence may be summarized as follows. The plaintiff's intestate, aged sixty-nine years, while crossing St. Botolph Street in Boston, was knocked down by an automobile owned and operated, by the defendant. There was evidence that the accident ultimately caused death. The plaintiff's intestate, in a statemént to the plaintiff, described the accident as follows: “I was coming from the A. & P. and I had my basket, and had my foot almost on the sidewalk and the car came so fast and struck me down.” The judge ordered struck out that part of the foregoing statement that described the automobile as going “so fast,” [219] and the plaintiff excepted. But there was no error in striking out that expression. Testimony that a vehicle is going fast, standing by itself, is too indefinite to support a finding that it was going at an unreasonable or dangerous speed, whether it is suffered to remain in the evidence or not. Foley v. Boston & Maine Railroad, 193 Mass. 332, 335. Whalen v. Mutrie, 247 Mass. 316, 318. Marcienowski v. Sanders, 252 Mass. 65, 67. O’Brien v. Bernoi, 297 Mass. 271, 273. Reynolds v. Jacobucci, 317 Mass. 500, 504. Compare Cuddyer v. Boston Elevated Railway, 314 Mass. 680, 682. We see nothing in the record tending to show negligence on the part of the defendant, unless it be the fact that the plaintiff’s intestate had nearly reached the sidewalk toward which he was walking before he was struck. That, we think, was not enough. The accident happened in the early evening on October 14, 1944. The street was forty feet wide, and was well lighted. There is no evidence as to the speed or manner of operation of the defendant’s automobile. The mere fact that the accident happened is of course no evidence of the defendant’s negligence. Conley v. Town Taxi, Inc. 298 Mass. 130, 132. Rogers v. Dalton, 298 Mass. 146, 148. Luvera v. DeCaro, 317 Mass. 222, 224. Exceptions overruled.