237 Mass. 27 | Mass. | 1921
This is an action of tort to recover damages for the death of Asa Bohanon alleged to have resulted from the negligence of a servant of the defendant. The time of the injury was about a quarter after five o’clock on Christmas morning, 1916, which was almost two hours before sunrise. It had been snowing earlier, but whether it was snowing at the moment of the accident is not certain from the record. The accident occurred between Lexington and Bedford at a place where the two sets of rails of the defendant were entirely to one side of the part of a wide highway wrought and used for travel. The tracks do not appear to have been on a reservation, but commonly no traffic of any kind except that of the street railway was within this part of the location of the way, and the space “between the tracks was grassed over.” The car of the defendant was proceeding on the track on the extreme outer side of the highway, where there is no sidewalk and where “people do not walk.” This was on the right of the highway as the car was going, the part of the highway ordinarily travelled by pedestrians, vehicles and automobiles being to the left of both sets of rails. The motorman, called as a witness by the plaintiff, testified in substance and without contradiction that he saw the prostrate form of the plaintiff’s intestate, covered with a light sprinkling of snow, lying between the rails when about two car lengths or sixty-two feet away; that using every effort he stopped the car in about five car lengths or one hundred fifty-five feet, but the man was fatally injured; that there was a slight curve in the road just before he got to where the man was, which threw the weak light of the car to one side of the rails; that the last house passed by him was one third of a mile from the accident; the‘neighborhood was sparsely settled and “was right out in the country.” The evidence as to the speed of the car was that it was proceeding at a rate of from fifteen to twenty miles per hour. There is nothing to indicate that pedestrians or other travellers might reasonably have been expected upon the street railway track at that early hour of the morning. There was no evidence tending to show how the plaintiff’s intestate happened to be lying between the rails.
The evidence including the plan and photograph fails to show negligence on the part of the defendant’s motorman. The evidence is quite similar to that in Kupiec v. Warren, Brookfield, &
It becomes unnecessary to discuss other errors set forth in the bill of exceptions. There appears to have been a full inquiry into the facts. The exceptions are sustained and in accordance with St. 1909, c. 236, § 1, judgment may be entered for the defendant.
So ordered.
