Shepherd v. Nirenstein

172 N.E. 917, 273 Mass. 7, 1930 Mass. LEXIS 1286

Opinion

Sanderson, J.

The plaintiff’s intestate, while crossing a highway in a westerly direction to take a street car, was hit by an automobile operated by the defendant, and so injured that she died without conscious suffering. The testimony as to her movements and conduct was conflicting and there were no admitted or indisputable facts in the case which would have justified the trial judge in ruling that the defendant had sustained the burden of proving contributory negligence. McGrath v. Boston Elevated Railway, 257 Mass. 541, 544. Linnane v. Millman, 261 Mass. 491, 494. Hepburn v. Walters, 263 Mass. 139, 141. ■ Testimony was introduced tending to prove that the defendant going in a northerly direction upon the street saw the deceased when she was one hundred feet from him; that he was then operating the automobile at a speed of forty miles per hour and continued at that speed until the accident; that a witness who watched the automobile approaching heard no signal sounded; that the point of impact was the left front of the automobile; that it went one hundred feet or more after striking the intestate before it came to- a stop and the deceased was then on the ground near the left front wheel. When told that he had killed •this woman, who was the sole support of her mother, the defendant said: “Never mind ... I am insured, and I will take care of her mother.” The evidence tending to prove negligence of the defendant was rightly submitted to the jury. G. L. c. 90, § 14, as amended by St. 1925, c. 305, § 14. See Rasmussen v. Whipple, 211 Mass. 546, 548; Dennison v. Swerdlove, 250 Mass. 507, 508; DiRienzo v. Goldfarb, 257 Mass. 272, 280.

Exceptions overruled.