286 Mass. 223 | Mass. | 1934
This is an action of tort to recover compensation for the conscious suffering and death of the plaintiff’s intestate alleged to have been caused by the negligence of the defendant. At the argument in this court the defendant conceded that there was evidence of the negligence of its motorman. The questions to be considered relate to the contributory negligence of the intestate, and the denial of certain requests for rulings.
It was not in dispute that the intestate while a pedestrian was injured by reason of a collision with a car of the defendant; that the accident happened between six and seven o’clock on a January night on Washington Street, Roxbury, beneath the elevated railway structure; that there were no other vehicles in the vicinity; that there was no street crossing or white post near the place of the accident and that the intestate died the next morning as a result of her injuries. In the street there were outbound and inbound tracks , of the defendant, and although there were arc lights in the neighborhood the place was described by some witnesses as quite dark, and some of the stores in the neighborhood were dimly lighted and some not lighted at all. There was testimony tending to show that the intestate left the sidewalk to cross Washington Street; that, when she was about in the center of the street and had crossed two of the four rails, the car of the defendant, approaching from her right, was fifty or sixty feet, or possibly seventy-five to eighty feet, away from her; that she was then near the third rail; that if she had taken another step she would have crossed the fourth rail and would have been entirely clear of the pathway of the car; that before leaving the sidewalk and when she started to cross the third rail she looked up and down the street; that the car shortly after began to go faster and at the time it hit the intestate was travelling twenty-five miles per hour; that she was struck by the right front of the car and that no gong was sounded; that the car was lighted and the headlight was on; that the car went twenty to twenty-five feet after the brakes were applied; that she was dragged some distance, and when the car stopped she was across the fourth rail and
There was much evidence tending to show negligence on the part of the intestate contributing to her injury; but we are of opinion that a verdict could not rightly have been directed in favor of the defendant on that ground. Whether the intestate was guilty of contributory negligence was a question of fact. There is some support in the evidence for a finding that the burden of proof resting on the defendant to prove this was not sustained. The case is very close to the line. It is distinguishable from Daignault v. Berkshire Street Railway, 277 Mass. 227, and cases there cited. It is distinguishable also from Sullivan v. Boston Elevated Railway, 283 Mass. 507, in that in the latter case the plaintiff was injured by getting into the pathway of the car by a single step while in the case at bar another step would have taken her to a place of safety. Jeddrey v. Boston & Northern Street Railway, 198 Mass. 232. Lunderkin v. Boston Elevated Railway, 211 Mass. 144. McBride v. Middlesex & Boston Street Railway, 276 Mass. 29, 34.
There was no error of law in the denial of the defendant’s requests for instructions. The third to the effect that when the intestate stepped between the third and fourth rails the car was so near and moving at such speed as to be manifestly dangerous was properly refused. It assumed as proved facts disputable upon all the evidence. The statement of the intestate that she thought that the motorman had seen her and was diminishing the speed of the car rendered it impossible to give this request. The eighth request also was rightly refused for the same reason. Morrison v. Holder, 214 Mass. 366, 370. Anti v. Boston Elevated Railway, 247 Mass. 1, 7. The other requests were
In accordance with the terms of the report the entry must be
Judgment on the verdict.
