205 Mass. 429 | Mass. | 1910
This is an action of tort to recover damages for personal injuries. There was evidence tending to show that the plaintiff’s intestate, driving an ordinary democrat wagon on the right hand side of a public way in which were tracks of the defendant, came upon a covered milk wagon going in the same
The relative rights of travellers by street cars and horse drawn vehicles upon public ways have been often stated. A street railway gains no exclusive or paramount right to use that portion of the highway included within its location. It has a certain important preferential right by reason of the fact that its cars can go only upon its rails and because it is designed thus to provide for the public a means of rapid transit. But other travellers can use that part of the street as freely as any other, subject only to the limitation that they do not unreasonably interfere with the street railway cars and that they exercise ordinary prudence to avoid collision with them. Those in charge of street cars are bound to drive them with a view to these well established principles and to be reasonably careful to avoid running into other travellers upon the highway. Each kind of traveller owes a reciprocal duty to the other, and within reasonable limits may trust somewhat to the expectation that the other will perform such duty. It has been pointed out that circumstances may exist where it cannot be pronounced negligent as matter of law so to drive upon a street railway track as to require an oncoming car to abate something of its speed. Jeddrey v. Boston & Northern Street Railway, 198 Mass. 232.
The evidence in the present case would support a finding that the plaintiff’s intestate looked before driving where it was possible for a car to hit him, exercised a reasonable judgment as to how far away the car was, and had almost reached the place in front of the milk wagon where he would have been outside the overhang of the car. The testimony of the motorman was that the speed of the car was eight miles an hour at the time the plaintiff’s intestate said he looked, and it is undisputed that the
The negligence of the defendant’s motorman also should have been left to the jury. It cannot be said as matter of law that his testimony, taken in conjunction with the statement of the plaintiff’s intestate, would not support a finding that he negligently failed to appreciate how near his running board was to the wheel of the wagon and that a little more circumspection on his part would have averted an accident. Wright v. Boston & Northern Street Railway, 203 Mass. 569.
Exceptions sustained.