| Mass. | May 19, 1927
These are two of four actions of tort which were tried to a jury. After a verdict for the plaintiff in each case, the cases come before this court on exceptions taken by the defendant to a refusal to grant its motion for a directed verdict, and to the refusal by the trial judge to give certain requested rulings.
All the material evidence bearing upon the issues is reported in the bill of exceptions. In substance, it appears therefrom that the plaintiffs, Rebecca Harter and Mary Lewis, on July 7, 1923, were injured in a collision with a street car of the defendant while they were guests in an automobile owned and driven by one Patrick J. Shea. There were four people in all riding in a Ford touring automobile. Mary Lewis was on the front seat at the right of the driver and Rebecca Harter was on the back seat on the right hand side, with her daughter, Leverne E. Harter, at her left. The automobile party was returning from Readville, and they were trailing an outbound car going to City Point on Dorchester Street near the corner of Fifth Street, when the automobile was struck by a car of the defendant, inward bound to Dudley Street. The automobile was driven in the paved way at the right of the outbound street car, which stopped at Old Harbor Street while people were getting off. The automobile was driven slowly, at the rate of about two miles an hour, until it was within eight or ten feet from the standing outbound car; then, wishing to make a turn into
Shea knew and relied upon rule 96A of the rules of the defendant, which reads: “Passing standing cars. No street railway car shall pass at a rate of speed faster than a walk another car standing on a track on the same street to receive or deliver passengers”; as also upon rule “119” of the defendant which reads: “The gong must always be sounded when starting, just before reaching street intersections, at all points where vehicles or persons are approaching a crossing, whenever car is approaching a vehicle near the track, and at all other places where an accident might thereby be prevented. The gong must always be sounded when passing a standing or slowly moving car.” In these circumstances Shea turned to the left, crossed the outbound track, had about reached the inbound track when he saw the electric car coming toward him a half second before the car struck the automobile on the left front of the radiator.
The evidence for the plaintiffs warranted a finding that they saw that Shea was about to make the turn to the left to cross over the inbound track; that they observed that he put out his hand, sounded his horn, leaned over the wheel and looked toward Broadway, the direction from which the colliding car came; and that they listened for “some alarm, — for a gong from the electric car coming, if there was one coming; that . . . [they] did not hear any.” There was evidence to warrant a finding that each plaintiff listened “for a gong, or a horn of a car,” heard nothing, and thought she was safe.
The evidence warranted a finding that the motorman of the colliding car was acting in violation of the rules of the defendant, in that he did not sound a gong in passing a standing car, passed that car at a speed faster than a walk, and did not apply the brakes sufficiently to bring the car under control inasmuch as the car did not stop until it reached Bowen Street, a distance of about sixty feet, the front of the
Each plaintiff testified in substance that she trusted Shea but was looking out for herself; that she realized that an electric car might be coming; that there might be danger of an accident if Shea drove onto the track of the inbound car; that she watched and listened for herself, thought she was safe and did not do anything or speak to Shea because it was not a second between the time of the turning and the collision.
The case is distinguishable from Pigeon v. Massachusetts Northeastern-Street Railway, 230 Mass. 392" court="Mass." date_filed="1918-05-27" href="https://app.midpage.ai/document/pigeon-v-massachusetts-northeastern-street-railway-co-6434451?utm_source=webapp" opinion_id="6434451">230 Mass. 392, upon which the defendant relies, in two particulars: (1) the plaintiff did rely on Shea, who could have been found by the jury to have justifiably relied on the motorman’s obedience to the rules of the defendant;.and (2) on the fact that the interval of time between the manifested purpose of Shea to drive across the inbound track at the moment and place he did was too short, less than a second, for the utterance of a protest against his contemplated action, or the doing of any other act or thing which would have restrained him or averted the collision. In the circumstances of this case the judge could not have ruled rightly that the conduct of these plaintiffs was not as matter of law that of reasonable and prudent persons; and consequently he was right in refusing to direct a verdict on the theory that the plaintiffs were guilty of contributory negligence. Griffin v. Hustis, 234 Mass. 95" court="Mass." date_filed="1919-11-25" href="https://app.midpage.ai/document/griffin-v-hustis-6434905?utm_source=webapp" opinion_id="6434905">234 Mass. 95. The requests for specific rulings as such are not argued as they are necessarily involved in the discussion of the motions for directed verdicts. In each case the exceptions are overruled.
So ordered.