Mulkern v. Lambert

The defendant, operating his automobile according to his testimony at a speed of twenty to twenty-five miles an hour early on a wet morning in Boston on Atlantic Avenue where the lighting was poor, struck and hurled into the air the plaintiff's decedent whom he first saw running approximately five feet in front of his car. He excepts to denials of motions for directed verdicts in actions of tort for personal injuries and death. On all the evidence the jury could have found the defendant’s speed unreasonable under existing conditions at the time of the accident. Snow v. Nickerson, 304 Mass. 63. Mitchell v. Silverstein, 320 Mass. 524. Nor does the evidence require a finding of contributory negligence, G. L. c. 231, § 85, on grounds of the pedestrian’s lack of care or his mere failure to see the defendant’s oncoming car. Nicholson v. Babb, 304 Mass. 216, 218-219, and cases cited. See McGuiggan v. Atkinson, 278 Mass. 264; Ferguson v. Worth, 326 Mass. 336. Exceptions overruled.