Thе plaintiff, a permanent member of the Holyoke fire department, while returning from a fire May 4, 1918, was injured by reason of a collision between the fire truck on which he was riding and a trollеy car of the defendant. When the collision occurred the plaintiff, who was a ladder man, was standing on the running board. He testified that, as the truck turned into Main Street from Hamilton Street, it wаs moving at the rate of four miles an hour; that he heard a crash and started to climb to the top of the ladder; that the running board began to crack and he was pinned between the car and the truck; that immediately before the accident he was looking in the direction in which the truck was going, but did not see the trolley car until just as the collision occurred, and when the car was about one foot distant; that if he had seen anything he would have tried to warn the driver of the fire truck. The lieutenant in charge of the fire truck testified that if the plaintiff saw а trolley car, it was no part of his duty to give warning of its approach; but if the trolley car was dangerously near, “it would be part of his duty to give such warning.” The verdict was for the plaintiff, and thе defendant excepted.
The motion for a directed verdict was denied properly: the question of the defendant’s negligence was for the jury. They could have found that the trоlley car was running at the rate of from thirty to thirty-five miles an hour; that no
The jury could have found that the plaintiff was in the exercise of due care. He was standing on the running board of the truck, where it was proper for him to stand in the discharge of his duty. He did not see the trolley car, he did not know that a collision was imminent until he heard the noise of the crash, and then he tried to avoid the danger.
The plaintiff and the other occupants of the truck were not engaged in a joint enterprise so that each was respоnsible for the conduct of all the participants. The elements necessary to establish a joint undertaldng are lacking. There was uncontradicted evidence that the lieutenant was “ in charge of this piece of apparatus, and the men upon it.” The principle that, if two or more persons participate in a common or joint undertaking and one is injured by the negligence of a third person, the contributing negligence of a joint participant in the enterprise is to be imputed to the injured person, has no application in the case at bar. As was said in Barry v. Harding,
The plaintiff did not trust his safety entirely to the care of the driver, the lieutenant, or the tillerman. The defendant’s request, in effect, that if the plaintiff relied solely on the care and vigilance of the lieutenant, the driver and the tillerman, or any of them, he сould not recover if their negligence contributed to the accident, was properly refused. There was no evidence that the plaintiff relied entirely on
The defendant offered to prove that the plaintiff was a member of the fire department of the city of Holyoke, appointed under the civil service laws; that “ his salary was $1,200, per year, which, on the twenty-sixth of July, 1918, was increased to $1,300 per year; ” that his salary was paid in weekly instalments “ during the time that he was ill; ” and offеred section 10, chapter 10 of the Revised Ordinances of the city of Holyoke, showing that a fireman receiving permanent injuries while in the discharge of his duty, may, on the recommendation of the fire commissioners and the approval of the board of aldermen, be retired on a pension equal to one half the maximum salary of a permanent firemаn at the time of retirement. This evidence was excluded. The jury were instructed that whether the city of Holyoke did or did not pay the plaintiff “ for that eight months during which he was incapacitаted is no test for you. . . . The defendant cannot avail itself of the act of the city of Holyoke ... as an excuse for relief from the consequence of its own wrongdoing, if it is guilty of any wrоngdoing.” They were further instructed that they were to determine to what extent the plaintiff was incapacitated by reason of the injury, and how far his earning capacity was impairеd; but they were not to take into account that the
Incapаcity to labor, or loss of earmng power is an item of damage in an action' for personal injuries. Mahoney v. Boston Elevated Railway,
Therе was notMng in the defendant’s offer of proof, indicating that the payments to the plaintiff during Ms disability were made as of right. They may have been entirely discretionary, and wMle we must assume that thеy were made in accordance with the law, Nevins v. City Council of Springfield,
At the close of the evidence the defendant moved that the members of the jury, residents and taxpayers оf the city of Holyoke, “ be discharged from further service as jurors in this case, because of their interest in the question being tried in this case, to wit, as to whether the defendant’s negligence was responsible for the collision, because the city of Holyoke can make claim for damages against this defendant growing out of the same collision, and dependent on the same question.” There was no evidence showing that the city of Holyoke was interested in the controversy, or had made any claim on the defendant for damages caused by the collision. If members of the panel were residents of the city of Holyoke, the defendant could have known it, and this objection should have been made before the trial. G. L. c. 234, § 31.
Exceptions overruled.