Bailey v. Worcester Consolidated Street Railway Co.

| Mass. | Nov 27, 1917

De Courcy, J.

These actions, which were tried together, arose out of a collision between a street railway car of the defendant and an automobile owned and operated by the plaintiff Bailey. A verdict has been returned in his favor for damage to the machine; and the other plaintiffs, who were travelling with him, have verdicts for the personal injuries sustained by them.

1. The jury were warranted in finding that the motorman was negligent. For a thousand feet or more the approaching automobile was within his view, yet he failed to shut off the brilliant headlight on his car until after the collision, in violation of the rule adopted by his employer for the safety of persons in the situation of these plaintiffs. Stevens v. Boston Elevated Railway, 184 Mass. 476" court="Mass." date_filed="1904-01-05" href="https://app.midpage.ai/document/stevens-v-boston-elevated-railway-co-6428383?utm_source=webapp" opinion_id="6428383">184 Mass. 476. There was also evidence that he not only failed to apply the brakes when the automobile got upon the track a short distance in front of him, but that he made no effort to put on the reverse for some time after the car came in contact with the automobile.

2. On the testimony of the plaintiff Bailey, there is much to indicate that the accident was due in part to his own contributory negligence. The collision occurred between eight and nine o’clock on the evening of July 4, 1915. He was running his car with his headlights extinguished and only the small side lamps lighted, and did not see the carriage which was proceeding ahead of him until he was within eighteen or twenty feet of it. Instead of then coming to a stop, as he might have done, he looked out to the left, observed that an automobile was coming toward him on that side, and then in violation of the law of the road, R. L. c. 54, § 2, endeavored to pass on the right the carriage in front of him, although he knew that the electric car was approaching. Perlstein v. American Express Co. 177 Mass. 530" court="Mass." date_filed="1901-01-25" href="https://app.midpage.ai/document/perlstein-v-american-express-co-6427341?utm_source=webapp" opinion_id="6427341">177 Mass. 530. On the other hand there was evidence that he thought he had room enough to pass in safety, and that he was so blinded by the rays from the headlight on the electric car as to misjudge the distance between the carriage and the car track. We cannot say as matter of law that the presumption of due care, to which he is entitled under St. 1914, c. 553, was entirely overcome by the evidence to the contrary. In the opinion of a majority of the court the issue of his due care was for the jury on the presumption and the testimony.

3. The due care of the plaintiffs in the three other cases plainly was for the jury, regardless of the statutory presumption in their favor. On the evidence each did all that reasonably could be expected of an invited guest in the way of looking out for his or her safety. And as the due care of Bailey was for the jury, who found in his favor, no question arises of the imputability to the other plaintiffs of negligence on his part. See Bullard v. Boston Elevated Railway, 226 Mass. 262" court="Mass." date_filed="1917-03-05" href="https://app.midpage.ai/document/bullard-v-boston-elevated-railway-co-6433901?utm_source=webapp" opinion_id="6433901">226 Mass. 262.

Exceptions overruled.