Wagy v. Brave

CRAIG, J.

Two causes emanating from the same transaction and asserted against the same defendant were tried

[415]

together before the superior court sitting with a jury, verdicts and judgments in favor of said defendant were rendered, and the plaintiffs appealed upon a single transcript.

While crossing in a northerly direction an easterly and westerly thoroughfare, at an intersection, the plaintiffs were struck by a west-bound automobile which was under the management and control of the respondent. The complaints alleged that the defendant carelessly, negligently and unlawfully drove and operated his said automobile in excess of fifteen miles per hour, toward the south side of said thoroughfare, across the intersection and crosswalk in which the plaintiffs were walking, and in violation of certain pleaded municipal ordinances, without due regard to the traffic, surface or width of said street. The plaintiffs, walking together, were preceded by two friends who first saw the approaching vehicle and hastened toward the northerly curbing, but admitted at the trial that they did not look backward. The plaintiff Hess at first testified that she saw the automobile about one-half block toward the eastward, but thereafter stated that she was on the left side of plaintiff Wagy, and that her view was obstructed. To the following questions the latter testified: ‘1Q. I understand you got past the center line of the street, got north of it at the time you were struck? A. Tes. Q. You got north of it before you looked to your right, didn’t you? A. Yes. Q. Now, the next time you looked towards the right was when you were north of the center line of the street, wasn’t it? A. Yes.” One of the witnesses first mentioned testified: “I don’t know, because I was looking the other way, whether it swerved any or whether it went straight ahead. Q. You don’t know whether it swerved one way or the other? A. No.” Miss Hess swore on cross-examination that she did not see the machine at any time before she was struck. The defendant testified that the accident occurred at about 12:30 or 1 o’clock A. M., that some of the street lights were out but that the top globe of a cluster was lighted; that as he was proceeding at a speed between fifteen and twenty miles per hour he saw two people running across the street at an angle, “then I saw some more, and then I put my brakes on”, “I know they were not in the crosswalk.”