Sawyer v. Pulsifer

161 N.E. 596, 263 Mass. 500, 1928 Mass. LEXIS 1176

• Court: Massachusetts Supreme Judicial Court
• Decided: May 25, 1928
• Status: Published

Opinion

Wait, J.

In these actions by husband and wife for damages arising out of an accident in which the wife was thrown down and injured by an automobile driven by the defendant, a jury has found for the plaintiffs; and the only question for our determination is, whether the trial judge erred in refusing to order verdicts for the defendant.

The defendant does not dispute that he was owner and driver of the car which struck Mrs. Sawyer, nor that there was testimony which, if believed, would justify a finding that he was negligent. He is, thus, forced to maintain that the evidence as matter of law established contributory negligence on Mrs. Sawyer’s part.

No good purpose is served by a statement of the testimony. There was contradiction. It is impossible for us to say that, as matter of law, the jury was bound by it to find the facts which the defendant relies on as proof that Mrs. Sawyer was careless. What she did, how she acted, whether she looked about with proper care or did not, can be determined only by knowing the amount of reliance to be placed upon the witnesses, and by appreciating properly the contribution of interrogating counsel and answering witness to the result. That is for a jury, not for judge or appellate tribunal.

We agree with the trial júdge that the evidence did not, as matter of law, require a finding of contributory negligence.

Exceptions overruled.