Emery v. Miller

120 N.E. 655, 231 Mass. 243, 1918 Mass. LEXIS 1036

• Court: Massachusetts Supreme Judicial Court
• Decided: October 29, 1918
• Status: Published

Opinion

Rugg, C. J.

Two girls about seventeen or eighteen years of age were walking hand in hand slightly to the left of the sixteen feet wide macadam part of a State highway in the town of Reading at about ten o’clock on a March evening. Other parts of the way including a dirt sidewalk were muddy. From behind, upon tracks on the side of the road, an electric car approached with a searchlight which made brilliant the part of the road where the girls were. They had an indubitable right to be travelling where they were. An automobile with headlights also approached from behind, driven by the defendant at a rate of speed estimated according to some testimony at thirty-five or forty miles an hour. There was an elevation in the road over the brow of which both the electric car and the automobile came, so that when the lights shone down on the road the girls were two or three hundred feet away. In this distance the automobile driven .on the right hand side of the macadam passed the electric car, and having been turned slightly further to the right struck both the girls causing severe injuries to each.

There can be no question that there was sufficient evidence of negligence on the part of the defendant. He was violating St. 1909, c. 534, §§ 14, 16. The speed at which he was driving might have been found to have been excessive and dangerous to other travellers.

There was evidence of due care on the part of the plaintiffs. They were upon a part of the highway where they had a right to travel. They rationally might assume that, even though they were on a main thoroughfare, a driver of an automobile would not violate the statutory law or be careless, and they might act to some extent upon that assumption. Neither a pedestrian nor a traveller by automobile has rights superior to those of the other. Each is bound to act with reasonable regard to the presence of the other. The testimony as to the conduct of the plaintiffs was to the effect that as the automobile came over the top of the hill and was distant two hundred or three hundred feet from the plaintiffs, when they were within the full glare both of the searchlight of the electric car and of the headlights of the automobile, “the girls started to run across to the right.” “When they started to run, they ran quickly” and made “a dash across the street;” “they must have heard the automobile and they jumped over to their right . . . without stopping to look when they started, they ran right across to their right” and if they had stopped where they were they would not ha,ye been struck and would have been safe. They were hit on the extreme right of the macadam. It cannot be said to be an irrational inference from this testimony that the girls, startled by the combined light of the electric car and the automobile, and having every reason to believe that a position to the right of the macadam part of the way would be safe, and knowing that a very brief time would enable them to run to that place of security, took that course in the instant permitted them for decision. Such a conclusion does not seem as matter of law more wanting in care than to remain on the left of the macadam part of the highway, where they would be within the narrow space between the electric car and the automobile provided the latter kept strictly to the right. If the defendant had been travelling at a lawful rate of speed, the girls would have reached a place of safety. Even if they did not pursue the wisest course in the light of what happened, that is not decisive against them.

Exceptions sustained.