Donahue v. Massachusetts Northeastern Street Railway Co.

| Mass. | Nov 23, 1915

Pierce, J.

Stating the testimony in its aspect most favorable to the plaintiff’s contention, the evidence warranted the jury in finding that the defendant maintained a street railway which ran from Newburyport Square along Merrimack Street in Newburyport to Amesbury Square, the running time between the two places being thirty minutes; that between Olive Street and Merrill Street (between which points the accident happened) the near rail of the defendant’s track was about three and eight tenths feet from the curbing of the sidewalk; that the car which struck the plaintiff was about fifteen minutes late; that the last stop of the car before the accident was at Olive Street, a distance of one hundred and sixty to one hundred and eighty feet from the place where the accident happened; .that the plaintiff and his companion, both boys about ten years of age, were walking on the sidewalk northerly in the direction in which the car was approaching; that the plaintiff, as he walked along Merrimack Street toward White’s Court, “heard the approach of the car coming about one hundred and thirty feet back near his uncle’s store, as he thought, not going very fast;” that the boys continued their walk until they came to a pole standing on the north side of White’s Court, or (as the plaintiff’s companion testified) to a gate sixty feet north of White’s Court; that as one or the other of these positions was reached they were speaking of crossing the street to go home; that at this moment the plaintiff’s hat blew off on to the track, and the plaintiff, thinking that he had time to get his hat in safety, ran a distance of about four feet from the curb of the sidewalk to the middle of the track, where he was struck by the car while stooping to pick it up. It did not appear that any gong was sounded or whistle blown, nor did it appear that there was any obstruction to the view between Olive Street and the place of the accident. The testimony further warranted a finding that the car was running at the rate of twenty miles an hour, and that “it stopped quickly, for what the car was going.”

Under all the circumstances we are of opinion that the evidence did not warrant a submission to the jury of the issue of the defendant’s negligence predicated'upon the fact that the motorman ran his car between streets at the rate of twenty miles an hour, or upon his alleged failure to sound the gong, to blow the whistle, or to anticipate that a boy of the plaintiff’s age would rush suddenly and impetuously upon the track and, in the face of an oncoming and plainly visible car, stop there. The direction of the verdict for the defendant was clearly right.

Exceptions overruled.