199 Mass. 258 | Mass. | 1908
The plaintiff was a conductor in the employ of the Springfield Street Railway Company. While on the running board of a car in the act of collecting fares, he was injured by a collision between an automobile owned and managed by the defendant and the car. This is an action to recover for the injuries so received. There was a verdict for the plaintiff, and the case is here on exceptions by the defendant to the refusal of the judge to give various rulings that were requested.
There are three questions: (1) As to the plaintiff’s due care, (2) as to the negligence of the motorman of the car, and (3) as to the defendant’s negligence. To questions put to them by the presiding judge after they had returned their verdict, the jury answered, that the plaintiff and the motorman were in the exercise of due care, and that the defendant
1. As to the plaintiffs due care. The plaintiff was where he had a right to be and was engaged in the performance of his duty, and whether he should have seen and guarded against the danger of a collision and have exercised more supervision over the motorman, and whether, taking all of the circumstances into account, he was in the exercise of due care was plainly for the jury.
2. As to the negligence of the motorman. We assume in the defendant’s favor that, if the motorman’s negligence caused or contributed to the collision, the plaintiff cannot recover. Yarnold v. Bowers, 186 Mass. 396. Allyn v. Boston & Albany Railroad, 105 Mass. 77. The instructions on this point were, to say the least, sufficiently favorable to the defendant. We do not see how it could have been ruled as matter of law that the motorman was negligent. The question of due care or negligence is ordinarily one for the jury. When the facts are undisputed it becomes one of law. In this case it was for the jury to determine what the facts were and then to decide whether they showed that the motorman was or was not negligent. Whether he should have discovered the plight of the automobile before he did and whether he exercised proper care in the way in which he operated the car after he did discover it, were clearly questions for the jury.
3. As to the defendant’s negligence. There was testimony which, if believed, tended to show that the accident was due to failure on the defendant’s part to use the emergency brake, in other words to what might be found to be negligence in the manner in which he operated the car. It was for the jury to give such weight as they saw fit to his testimony and explanations in relation thereto. It was also for them to say whether he exercised due care in turning into Leyfred Terrace as he did and whether, if he did not, such want of due care on his part contributed to the accident. The question of the defendant’s negligence, like that of the plaintiff’s and the motorman’s due care, was for the jury. It could not be ruled as matter of law that there was no evidence of negligence on his part.
Exceptions overruled.
