
    Ellery C. Butts vs. Tobin & Garceau Trucking Co.
    No. 90591.
    February 20, 1934.
    For plaintiff: Henshaw, Lindemuth & Baker.
    For defendant: Voigt, Wright & Munroe.
   FROST, J.

Heard on defendant’s motion for a new trial after verdict for plaintiff in the sum of $400.

This is an action to recover damages for personal injuries alleged to have been suffered and also for damages done to plaintiff’s automobile as a result of a collision between plaintiff’s machine and a truck operated by defendant’s .servant, in the City of Fall River on the morning of November 10, 1932.

Plaintiff was driving his machine southerly on Eastern Avenue, which is a very broad highway. Defendant’s truck was being driven in a westerly direction on Pleasant Street, which crosses Eastern Avenue. The testimony as a whole would amply justify a finding that defendant’s truck approached. ^the point of intersection at an .excessive rate of speed under the existing circumstances. Plaintiff saw the truck when it was 300 to 400 feet awq.y', as he testified. Plaintiff also testified that he had the truck in view all the. time. He, himself, was proceeding at a slow rate of speed. He attempted to cross the path of the oncoming vehicle, evidently relying on the fact that he was on the right of the truck and so thinking that he had the right of way. The front part of his car was struck by the truck.

One’ may not assume that the operator of an approaching machine will obey the law when his own senses plainly tell him that such operator is transgressing the law. He is bound by what he sees. Plaintiff’s own testimony would indicate that he could have stopped before he did and thus could have avoided injury.

The Court thinks that the weight of the testimony is clearly the effect that plaintiff was guilty of negligence contributing to the accident.

Defendant’s motion is therefore granted.  