[Note: The Supreme Judicial Court of Massachusetts heard this case a second time, and that opinion is found at 104 NE 466, 217 Mass 52 (Mass 1914).
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| Rogers v. Phillips, 92 NE 327, 206 Mass 308 (Mass 1910). An adult bicyclist was struck and killed by an overtaking automobile. The bicyclist was riding on the right hand side near the curbstone and attempted a lateral merge or a "long, sweeping turn." The bicyclist was 45 years old and an experienced rider in good health. The road was 40 feet wide, smooth, hard and straight. The automobile was in the middle of the lane behind the bicyclist and driving at 7 to 10 mph. The motorist and her passenger were conversing and looking at the ocean. There were no other vehicles on the highway, the motorist first saw the bicyclist at her right front fender 2 or 3 feet ahead, and no horn sounded to warn the bicyclist of the motor car's presence. The motorist came to a stop 130 feet beyond the body of the deceased. The Supreme Judicial Court of Massachusetts reversed and remanded the plaintiff's judgment for a new trial. From the court's opinion: "The evidence in the present case was somewhat conflicting, but we think the jury might properly have found that while the deceased was riding his bicycle on the right side of the road near the curbstone, and while the automobile was behind him going in the same direction, he determined to retrace his steps and for that purpose began to cross the road; that the automobile was so far behind him that it reasonably might have been expected that the defendant would see him, and that if she should see him she could and would by the exercise of proper care on her part so manage the automobile as to avoid a collision. Crossing the road under such circumstances would not necessarily be negligent as a matter of law. The question of the negligence of the act would be one of fact for the jury. Nor do we see in the other circumstances of the case anything absolutely conclusive in law against the existence of due care on the part of the deceased. Upon the whole evidence this question, as it ordinarily is in cases of collision between travelers upon the highway, was one of fact for the jury." [Note: The Supreme Judicial Court of Massachusetts heard this case a second time, and that opinion is found at 104 NE 466, 217 Mass 52 (Mass 1914). |
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