Clinton v. Inhabitants of Revere, 195 Mass. 151

Clinton v. Inhabitants of Revere

195 Mass. 151 | Mass. | 1907

BRALEY, J.

The first question is, whether there , was any evidence upon which the jury could find that the street was unsafe for the use of travellers in ordinary vehicles. Baker v. Fall River, 187 Mass. 53. It apparently was maintained with sidewalks, and in the roadway a double line of car tracks were laid. In their description of the alleged defect the plaintiff and his witnesses, whose testimony comprises all the evidence on this issue, differed only as to the depth of the gully. This depression, which extended along the street about eighteen inches from the curbstone, could be found to have been some eight or nine inches in length by a foot in width, while^varying in depth from six to eight or ten inches. The area covered, the depth of the hole and its location with reference to the use of the street were essential facts for the consideration of the jury, to whom this question was left rightly. Hodgkins v. Rockport, 116 Mass. 573.

The plaintiff’s use of a bicycle as a conveyance does not prevent the maintenance of the action, if at the time of the accident he was using ordinary care. Spring v. Williamstown, 186 Mass. 479. MacFarlane v. Boston Elevated Railway, 194 Mass. 183.

When the plaintiff was injured, an electric car and a furniture wagon were passing abreast in the direction in which he was going, and, upon turning to the right of the wagon to go by, he ran into the gully, and was thrown to the ground. It also appeared that he was accompanied by a companion, who riding ahead had passed safely, even if the space between the wagon *154and the curbstone was only three feet in width; and the plaintiff testified that, as he approached, but before attempting to pass, his view of the gully was cut off by the team. Under these circumstances, although he failed to observe the requirements of R. L. c. 54, § 2, by turning and passing by to the left of the car, it was for the jury also to decide whether his conduct was reasonably prudent. Torphy v. Fall River, 188 Mass. 310, 314, and cases cited. Campbell v. Boston, 189 Mass. 7. Smith v. Conway, 121 Mass. 216.

In actions to recover damages for injuries caused to travellers by defective ways, a city or town is not liable unless the defect is the sole cause of the accident. Raymond v. Haverhill, 168 Mass. 382, 384. By the sixth request the defendant asked for a ruling that this rule was applicable, and that if the proximity of the wagon caused or contributed to the plaintiff’s injury he could not recover. But there was no evidence of negligence on the part of the driver of the team, which was lawfully upon the street. If its presence by narrowing the space may be said to have rendered the plaintiff’s passage more hazardous, yet each was properly using the way without any act of negligence towards the other. It is only where the concurring act of a wrongdoer also contributes to the injury that the municipality is relieved by this exception to the general rule, that in actions for wrongs suffered from negligence the act causing the injury is to be treated as the proximate cause, without regard to intervening acts by which it is precipitated. Block v. Worcester, 186 Mass. 526. Oulighan v. Butler, 189 Mass. 287, 292, 293, and cases cited.

The defendant’s requests were denied rightly, and the instructions given on the questions raised clearly and accurately stated the law.

Exceptions overruled.