198 Mass. 532 | Mass. | 1908
This is an action of tort brought to recover for personal injury sustained by the plaintiff while a motorman in the employ of the defendant. The car, which the plaintiff was driving, ran into another car ahead of it going in the same direction. The case was submitted to the jury upon the first and third counts of the plaintiff’s declaration, the former being under R. L. c. 106, § 71, cl. 1, for a defect in the ways, works and machinery, and the latter at common law, for failure to furnish a safe car. The experience of the plaintiff as motorman was during twelve days while receiving instructions from employees of the defendant and (after an interval of two weeks) for not quite two weeks during which he was spare motorman for the defendant. The accident happened on Salem Street, in Malden, near the corner of Auburn Street. Salem Street runs from Malden Square to the place of the accident, a distance of about a quarter of a mile, and béyond. The plaintiff contended that the accident was due to a defective condition of the brakes on his car. It happened on the evening of a pleasant summer day, after he had been operating the car about two hours. The plaintiff testified in substance that immediately upon getting on the car he noticed that there was trouble with the brakes; that on his route an inspector of the defendant had boarded his car, and plaintiff told him that the brake was not working right;
But apart from this ground, the plaintiff failed to show that he exercised due care for his protection. He knew better than any one else just how his car was working, and how difficult it was to stop it. For about two hours he had been running it, and had gone over his entire route and more. He was just behind the car with which he came in collision for more than a quarter of a mile, and knew that his was a swifter car than the one ahead and, as he followed, was throwing his power off and on, and kept his car as near as he would, if his brake had been in perfect order. The car in front slowed down in the ordinary way at a regular stopping place. Then, when he discovered that his brake was not stopping his car, he did not attempt to use the reverse, although he knew that this was the most efficient and quickest way of bringing it to a stop. The danger of collision was as obvious to one with the knowledge, which the plaintiff possessed, as it could have been to any one else. It was of such a nature as to be immediately understood and appreciated by one of ordinary intelligence.
The talk with the inspector should probably be regarded as nothing more than a suggestion that if he proceeded with suffi
Exceptions sustained.