Bryant v. Boston Elevated Railway Co.

212 Mass. 62 | Mass. | 1912

Braley, J.

The plaintiff while upon a public way as a pedestrian without any reasonable cause to apprehend that his position might be unsafe was struck, knocked down, and rendered unconscious by a wagon driven by a servant of the defendant express company. If the combination of circumstances which produced the injury may be infrequent, they are not extraordinary, and, the issue of this defendant’s negligence having been a question for the jury, the refusal to order a verdict in its favor was right. Powell v. Deveney, 3 Cush. 300. Slattery v. Lawrence Ice Co. 190 Mass. 79. Hanley v. Boston Elevated Railway, 201 Mass. 55, 59. Dulligan v. Barber Asphalt Paving Co. 201 Mass. 227, 231.

But the ruling that the plaintiff could not recover against the defendant railway company should not have been given. The parties were concurrently using the public ways, and each defendant could not disregard the rights of other travellers, or escape the consequences if every reasonable precaution was not taken to avoid injury to them. O’Brien v. Blue Hill Street Railway, 186 Mass. 446, 447. The jury would have been warranted in finding, that for some distance below the place of the accident the car and wagon, while moving in the same direction, proceeded with equal speed, when as they approached a sharp curve in the railway track where it turned into a cross street the car passed the wagon, which then moved up until as they entered the curve the car and wagon were abreast, or the wagon might have been slightly in advance. As it approached the curve the car slackened speed, while the wagon moved slowly, and the width of the street with the sharp curvature of the track plainly showed that the wagon and the car could not simultaneously pass substantially abreast around the curve and the car turn to the left without coming in contact. It also appeared, that at this corner travel during the day time became greatly congested, and because of the volume of traffic a police officer had been stationed for the protection of travellers. It was with this situation before them, that in broad daylight the motorman and the driver after a signal from the officer that they could proceed, moved forward, and the car going at greater speed outstripped the wagon. The projecting rear end of the car in passing swung over the roadway, and coming into collision with the wagon forced it over the sidewalk, where it felled the plaintiff. It was the duty of the motorman to have stopped the car if he saw that the driver had determined to go on, and it was the duty of the driver not to have attempted to pass the car and turn to the left until the car had passed him, and if either the motorman or the driver had acted with ordinary prudence the collision would have been averted, and the injury to the plaintiff, would not have happened. Carrahar v. Boston & Northern Street Railway, 198 Mass. 549. Wright v. Boston & Northern Street Railway, 203 Mass. 569, 570, 571. The plaintiff having offered abundant evidence that his injuries could be attributed to the concurrent misconduct of the defendants, he can recover judgment against both, although he can have but one satisfaction in damages. Feneff v. Boston & Maine Railroad, 196 Mass. 575, 581. By the terms of the report judgment is to be entered on the verdict for the plaintiff against both defendants.

So ordered.