ALICE SMITH, administratrix, vs. DOUGLAS S. HOGAN.
Negligence, Motor vehicle, In use of way, Contributory.
Evidence, at the hearing in a district court of an action for the death of a pedestrian on a public way resulting from his being struck, by an automobile driven by the defendant with lights lighted, on a misty evening on a macadam street twenty-four feet wide directly opposite a street light with such violence as to break several bones, severely to maim and bruise him, and to cause fatal injuries, that the headlight of the defendant's automobile was bent and otherwise defaced, and that the automobile continued on its way more than seventy feet before it was stopped, amply warranted findings of negligence on the part of the defendant and of due care on the part of the deceased.
TORT for the conscious suffering and death of the plaintiff's intestate. Writ in the Second Di,s trict Court of Eastern Middlesex dated March 16, 1932.
In the District Court, the action was heard by Crafts, J. Material evidence is stated in the opinion. The judge allowed a motion by the defendant for a "directed finding" in his favor on a count for conscious suffering and denied a
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similar motion as to a count for causing death; found for the plaintiff in the sum of $5,000; and reported the action to the Appellate Division for the Northern District. The report was ordered dismissed. The defendant appealed.
R. J. Dunn & J. F. Lawton, for the defendant, submitted a brief.
J. G. Bryer, for the plaintiff.
BY THE COURT. This action of tort was brought to recover damages for the death of the plaintiff's intestate alleged to have been caused by the negligent operation by the defendant of an automobile. There was evidence tending to show that on a macadam street, twenty-four feet wide, between six and seven o'clock on a January evening when there was a light mist, at a place directly across from a street light, the defendant, driving his automobile with lights lighted, there being no other travel on the street, struck the intestate, while walking, with such violence as to break several bones, severely to maim and bruise him, and to cause fatal injuries, at the same time bending the headlight of the automobile and causing other defacement to it. The automobile went more than seventy feet before being stopped. It is unnecessary to narrate the evidence in detail. It amply warranted a finding of negligence on the part of the defendant and of due care on the part of the intestate. Powers v. Loring, 231 Mass. 458. Alpert v. Ellis, 236 Mass. 404. Durling v. Lamontain, 277 Mass. 517. McGuiggan v. Atkinson, 278 Mass. 264. Clark v. C. E. Fay Co. 281 Mass. 240, 242, 243.
Order dismissing report affirmed.