Harding v. Boston Elevated Railway Co.

265 Mass. 344 | Mass. | 1928

Wait, J.

The plaintiff was struck and injured by an electric street car of the defendant as he was crossing Washington Street near Arnold Street in Roxbury. He testified that about eight o’clock in the evening of March 28, 1925, he walked north along Washington Street to a point on the easterly sidewalk where he prepared to cross to go to a store near Arnold Street. The night was "quite” dark. There was no starlight or moonlight, but there was an electric street light at the northeast corner of Arnold Street. It was misting a little. The street was darkened by the elevated structure, here supported by iron columns fifteen inches square on both sides of and four feet distant from the outer rails of a double track between nineteen and twenty feet wide from the most easterly to the most westerly rail. Washington Street narrows as it comes from the south, and opposite Arnold Street is about sixty-three feet wide from curb to curb. The track runs nearly in the middle, but is a few feet nearer the westerly sidewalk. There is a down grade toward the south of about twelve to eighteen inches in a hundred feet which ends near Arnold Street. There was no cross walk. Woodbury Street, which enters Washington Street from the west, is about one hundred sixty-five feet northerly from Arnold Street, and Lenox Street is about five hundred feet away in the same direction. Six lines of street cars use the tracks; and the plaintiff, who was familiar with the locality, testified that “You would expect a car to be coming on one track or the other most any time,” and that he knew that the rail was slippery and it might be hard for a motorman to stop his car quickly in case of need. He testified that he stepped to the curb, looked up and down Washington Street, and saw that no trucks or automobiles were coming, but that a single street car was in sight going south, which had not reached Lenox Street, three hundred or three hundred fifty feet away from where he stood. He went forward and when near the first rail looked to see that no car was coming from the south, and that the car he had seen coming from the north was a “sufficient distance away I should say to be safe to cross, probably a couple of hundred feet or more, two hundred and fifty,” crossed over the third rail and was about at the fourth rail when he was hit. If this testimony was believed, it would support findings of due care on his part and of negligence on the part of the motorman. Jeddrey v. Boston & Northern Street Railway, 198 Mass. 232. O’Toole v. Boston Elevated Railway, 211 Mass. 517. Harrington v. Boston Elevated Railway, 214 Mass. 563. Coolidge v. Boston Elevated Railway, 214 Mass. 568. Hennessey v. Taylor, 189 Mass. 583.

A witness, called by the plaintiff, testified that, as he stood near Arnold Street, he saw the plaintiff crossing diagonally toward him and looking along the tracks as he reached the first rail. The witness then saw, a little north of Woodbury Street, a car coming at about eighteen to twenty-two miles per hour. The man kept on. The witness looked again. The car was about eighteen feet from the plaintiff. He saw him “spurt up, commence to get a little walk on, and by the time he got to the second last rail the car was pretty close to him.” He shouted to the man but it did no good, and he was hit just as he was at the last rail. The car did not stop till it had gone eight to twelve feet further. He heard no gong nor application of brakes, but saw sparks from the brakes. If this testimony was believed, it would justify a finding of lack of due care by the plaintiff. Stone v. Boston Elevated Railway, 211 Mass. 365. Haynes v. Boston Elevated Railway, 204 Mass. 249.

It was for the jury to decide which story to believe. The plaintiff was not bound by the testimony of the witness where it contradicted or threw doubt upon what he himself had stated to be the truth. See Hill v. West End Street Railway, 158 Mass. 458. It cannot be said that a verdict for the defendant was required as matter of law.

There was error, therefore, in directing a verdict for the defendant and the entry must be

iException sustained.