Smithell v. Murphy

PUTNAM, C.J. (Zottoli, & Tomasello, JJ.)—The plain' tiff testified that at two o’clock in the morning, in a snow storm, she alighted from a street car, crossed in front of it, and while crossing the rest of the street toward the sidewalk near an intersecting street she saw the defendant’s taxicab about fifty yards away, and then somewhat nearer to her, and finally, when she had almost reached the sidewalk, it was about as far [103] away from her as “the last rail in the courtroom," and then it struck her and dragged her fifteen or twenty feet to her left and to the curb. No other witness testified to the actual happening of the accident. The defendant contented himself by calling only medical witnesses. The judge found for the plaintiff, and refused to give the following ruling requested by the defendant: “1. That upon all the evidence, the evidence in this case compels a finding that there' is no evidence of negligence on the part of the defendant.” While it is true, as the defendant contends, .that the mere happening of an accident is not evidence of negligence on the part of the defendant, we have more than that in this case. If the plaintiff could see the defendant’s vehicle one hundred and fifty feet away it is equally true that the defendant could also see the plaintiff for the same distance. The question of the defendant’s negligence was, under these circumstances, a question of fact for the trial judge to decide. Mulroy v. Marinakis, 271 Mass. 421. The requested ruling was properly denied. Report dismissed.