1 Mass. App. Ct. 861

December 10, 1973

This action of tort to recover for personal injuries sustained by the plaintiff when struck by the defendant's truck is here on the plaintiff's exception to the allowance of the defendant's motion for a directed verdict presented at the close of the plaintiff's evidence. The evidence most favorable to the plaintiff is summarized: At midday on August 22, 1969, the plaintiff, after looking in both directions along Broadway in South Boston without seeing any traffic approaching from either direction, started to cross Broadway from north to south between the white lines of a plainly marked crosswalk at the intersection of Broadway and K Street: slightly ahead of the plaintiff and to his right was a blind man whose arm the plaintiff was holding and whom he was assisting across the street. Broadway in that vicinity is straight, approximately level, and of a width sufficient to accommodate two lanes of traffic in each direction even when a line of vehicles is parked parallel to each curb. The defendant's employee, driving its truck in a westerly direction along Broadway in the direction of the K Street intersection at a speed of approximately ten miles per hour, had a clear and unobstructed view of and beyond the intersection as he approached the same. The plaintiff had almost crossed the path of the oncoming truck when he was struck; he had not seen the truck. The defendant's employee had not seen the plaintiff or applied his brakes until he was within three or four feet of the plaintiff; the course of the vehicle from the time the employee first saw the plaintiff to the point of impact was straight ahead. On the evidence there was a question of fact for the jury whether the defendant's employee in the exercise of due care should have seen the plaintiff (in the company of the blind man) in sufficient time to avoid the accident by stopping or by passing behind the plaintiff. Jean v. Nester, 261 Mass. 442, 445 (1927). Mulroy v. Marinakis, 271 Mass. 421, 422-424 (1930). Legg v. Bloom, 282 Mass. 303, 305 (1933). Bryant v. Emerson, 291 Mass. 227, 228 (1935). Derby v. Railway Exp. Agency, Inc. 295 Mass. 438, 439-441 (1936). Perricotti v. Andelman, 298 Mass. 461, 462-463 (1937). Herlihy v. Kane, 310 Mass. 457, 460 (1941). Reed v. Union St. Ry. 320 Mass. 706, 708-709 (1947). The present case is distinguishable from ones such as Helie v. Goldstein, 338 Mass. 22, 24 (1958), in which the vehicle was stopped as soon as possible after the defendant could have seen the plaintiff. There is no contention that the plaintiff in this case was guilty of contributory negligence as

Page 862

matter of law. See Durling v. Lamontain, 277 Mass. 517 (1931); Shoobridge v. Callahan, 310 Mass. 632, 633-635 (1942).

Exceptions sustained.