231 Mass. 160 | Mass. | 1918
The plaintiff was injured in a collision between an automobile which he was driving and an electric car of the defendant; and a verdict has been rendered in his favor. The only exception taken at the trial is one to the refusal of the presiding judge to direct a verdict for the defendant.
The accident happened on Main Street in Worcester, where there were double street railway tracks. The plaintiff had backed his automobile from a garage on the easterly line of Main Street across the sidewalk and into the street, and was in the act of turning the machine to go forward in a northerly direction when a north bound car of the defendant struck the automobile and drove it diagonally across the sidewalk.
There was ample evidence of the motorman’s negligence, —■ and we do not understand that the defendant argues to the contrary. The jury could find that the motorman should have seen the sign warning him to “go-slow — 4 miles an hour,” yet he ran his car down grade at a speed of twenty or twenty-five miles an hour until just before the collision; and that, although the plaintiff
The issue of the plaintiff’s due care was rightly submitted to the jury. In the first place, the St. 1914, c. 553, made contributory negligence on the part of the' plaintiff “an affirmative defence to be set up in the answer of, and proved by the defendant.” It could not be ruled as matter of law that the defendant had sustained that burden on the oral and conflicting testimony. Duggan v. Bay State Street Railway, 230 Mass. 370. Further, the jury could find these facts: the plaintiff was obliged to back out of the garage, and to go as far as the north bound track before turning; at this “ rush hour ” electric cars were passing or approaching the garage in “almost a continuous chain,” and the nearest rail was only twelve feet from the curb line; when the plaintiff was on the sidewalk he looked and saw this car beyond Jackson Street, or more than four hundred and forty feet away; he looked again when he reached the gutter and saw the car near Jackson Street, or about four hundred feet distant; he knew that he “had plenty of time,” but when he had come to a stop and was about to go forward, the car came upon him at an unusual and rapid speed, and without warning. While it was the plaintiff’s duty to exercise reasonable care for his own safety at this dangerous place, he well might trust something to the expectation that the motorman also would act with due regard for the safety of others lawfully using the street.
Exceptions overruled.