Pawloski v. Hess

149 N.E. 122, 253 Mass. 478, 1925 Mass. LEXIS 1247

• Court: Massachusetts Supreme Judicial Court
• Decided: October 16, 1925
• Status: Published

Opinion

Rugg, C.J.

This is an action of tort brought to recover compensation for personal injuries received by the plaintiff through being struck by an automobile owned by the defendant and operated by him or by someone for whose acts he was responsible. The injury occurred at the intersection of two streets in Worcester at about noon of a pleasant September day. At that time the plaintiff was between nine and ten years of age and was on his way to a store to make a purchase. He testified, “When I left the sidewalk I couldn’t see any automobile. When I first saw the automobile it was so near me that I could not prevent getting hit. I do not know how the accident happened other than that the automobile hit me just after I left the sidewalk.” An eyewitness testified that the plaintiff was walking about fifty feet in front of him on the sidewalk when the plaintiff stepped out into the street toward a store; that the speed or direction of the automobile, "proceeding at about twenty to twenty-five miles per hour in the trolley car tracks,” was not changed until after it hit the plaintiff; that no horn on the automobile was sounded as it approached the intersection of the streets or at any time in the vicinity; that there was a curve in the street from the direction from which "the automobile came and although I was facing the car I did not see it until it was about ten yards from me and it was then nearer the plaintiff than it was to me. When the plaintiff left the sidewalk I saw no car in the street, and he had only taken four or five steps when he was struck.” This was all the evidence. No testimony was introduced by or in behalf of the defendant.

A finding was warranted that the plaintiff was in the exercise of due care. Tripp v. Taft, 219 Mass. 81. Beale v. Old Colony Street Railway, 196 Mass. 119. Kaminski v. Fournier, 235 Mass. 51. Rasmussen v. Whipple, 211 Mass. 546. Bengle v. Cooney, 243 Mass. 10.

There was evidence of negligence, causative of the injury, on the part of the one in control of the automobile. Its speed and the failure to sound its horn may have been found to be violative of G. L. c. 90, §§ 14, 17, in particulars conducive to the injury, and hence evidence of negligence on that account, as well as intrinsically careless. Creedon v. Galvin, 226 Mass. 140. Emery v. Miller, 231 Mass. 243. Powers v. Loring, 231 Mass. 458. Coope v. Scannell, 238 Mass. 288. Davicki v. Flanagan, 250 Mass. 379, 381.

The defendant’s motion for a directed verdict and his request for a ruling that the plaintiff was not entitled to recover were denied rightly.

The plaintiff brought his action against a nonresident defendant without making personal service but by complying with the provisions of St. 1923, c. 431, § 2, as to service. That section is quoted in full in a previous decision in this case, 250 Mass. 22, where its constitutionality was discussed at large and upheld against all objections so far as we have jurisdiction to pass upon those questions. The reasons for that conclusion are there stated at length and need not be repeated. We adhere to and affirm them. It follows that in our opinion the defendant’s requests for instructions numbered 2 and 3, to the effect that the service of process infringed his rights secured by § 1 of the Fourteenth Amendment to the Constitution of the United States, were denied rightly.

Exceptions overruled.