The plaintiff, a 74 year-old retired Chinese immigrant, was crossing Commonwealth Avenue at the intersection of Commonwealth Ave. and Wallingford Street in Brighton, Massachusetts. As the plaintiff crossed Commonwealth Avenue, he was struck in the pedestrian walkway by an auto operated by the defendant, an 85 year-old Newton, Massachusetts resident. The defendant’s wife, a witness in the case, was seated in the front passenger seat of the defendant’s auto at the time of the incident. As a direct result of the impact, the plaintiff suffered a closed-head injury, with progressive dementia. The plaintiff’s medical bills were in the vicinity of $40,000.
The plaintiff was prepared to offer evidence at trial that at the time of the incident he was pushing a typical metal grocery store basket from the inbound side of Commonwealth Avenue to the outbound side of the street, that is, from the defendant’s left side to the defendant’s right. The defendant, who claimed that the plaintiff was crossing from the defendant’s right side to his left, disputed the plaintiff’s direction of travel. The direction of travel was highly significant as the plaintiff’s version suggested that the plaintiff was nearing the sidewalk when the defendant’s auto struck him.
Because of the plaintiff’s injuries and the defendant (and his wife’s) advanced age, neither the plaintiff, the defendant nor the defendant’s wife, were expected to participate as witnesses at trial. The defendant’s deposition testimony, obtained prior to the defendant’s cognitive impairment, was to serve as the defendant’s sole testimony at trial.
The plaintiff was prepared to demonstrate, based on deposition testimony taken from the defendant and the defendant’s wife, that the defendant’s version of the accident was neither reliable nor supported by the evidence. The defendant testified during his deposition that there was absolutely no damage whatsoever to the defendant’s auto as a result of the collision. The defendant further testified that the plaintiff’s shopping cart remained standing to the right of the defendant’s auto, and remained filled with empty bottles and cans, despite being struck by the defendant’s auto at a speed of twenty-five miles per hour.
The plaintiff argued that it was virtually impossible for the defendant to have struck the plaintiff without striking the plaintiff’s metal shopping cart if the plaintiff had been crossing from the defendant’s right to his left. Moreover, it was highly unlikely that the plaintiff’s shopping cart would have remained upright and undamaged had it been struck by an automobile traveling at twenty-five miles per hour.
The case was settled just prior to trial.
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