Negligence, Contributory, In operating motor car. In an action for personal injuries sustained after the passage of St. 1914, c. 553, by being run into by a motor car owned and driven by the defendant when the plaintiff was crossing a highway on foot, where the plaintiff has testified that before he started to cross the street he looked up the street in the direction from which the defendant's car came and saw nothing, the plaintiff is entitled to have the question whether he was in the exercise of due care submitted to the jury.
In an action for personal injuries sustained by being run into by a motor car owned and driven by the defendant, if the defendant testifies that he saw the plaintiff step off the sidewalk to cross the street ten or twelve feet ahead of the defendant's car and another witness for the defendant testifies that the distance was from twenty-five to thirty feet and there is evidence on which it can be found that the defendant, notwithstanding this knowledge of the situation and with the plaintiff in plain sight, neither gave any warning of the car's approach nor reduced its speed but kept on with such momentum that when the plaintiff was struck by the car he was carried on its front for about fifty feet before it came to a stop, the question of the defendant's negligence is for the jury.
BRALEY, J.
The question of the plaintiff's due care was submitted to the jury rightly. St. 1914, c. 553. Nye v. Louis K. Liggett Co. 224 Mass. 401.
It appeared from the defendant's own testimony that he saw the plaintiff step off the sidewalk to cross over the street "ten or twelve feet ahead of the automobile," while another witness for the defendant placed the distance as "about twenty-five to thirty feet." The jury on all the evidence could find that notwithstanding this knowledge of the situation, and with the plaintiff in plain sight the defendant neither gave any warning of the car's approach nor slackened speed, but kept on under such momentum that when the plaintiff was struck he was carried on its front for about fifty feet before the car came to a stop. The question of the defendant's negligence was plainly an issue of fact, and all of the requests, in so far as argued, were refused properly. Hennessey v. Taylor, 189 Mass. 583, and cases cited.
Exceptions overruled.