218 Mass. 251 | Mass. | 1914
The facts in this action were substantially as follows : The plaintiff undertook to alight from one of the defendant’s cars without notifying the conductor or motorman that he wished to do so. He had been riding on the front platform, standing behind the motorman and between two other passengers, Glass and Davis by name. Glass was on his left and Davis on his right. The car had come down Lafayette Street in the city of Salem, and slowed down to go round a curve into New Derby Street, which runs nearly at a right angle. As the car came to the curve
The first ground on which the plaintiff contends that the jury were warranted in finding negligence on the part of the defendant is that from the fact that Davis stepped forward beside the motorman (at the time the plaintiff passed behind Davis to alight), the motorman ought to have known that the plaintiff was intending to alight although he had not taken the trouble to give him notice of his intention to do so. We doubt whether that is so, because it is the duty of a motorman to concentrate his attention on the street before him in order to avoid collisions with automobiles, wagons and foot passengers, who have equal rights in it. Kiley v. Boston Elevated Railway, 207 Mass. 542. Brightman v. Union Street Railway, 216 Mass. 152. But we do not find it necessary to come to a decision on that fact because it appears that the company had regular stopping places marked by white posts, and the place where the plaintiff undertook to alight was not at a stopping place.
Of course it would have been the motorman’s duty to come to
We are of opinion that a finding of negligence was not warranted by the fact that, when spoken to by Davis, the motorman, in place of applying the reverse power, shut off the power and applied the brakes.
But we are of opinion that the testimony given by Davis on his direct examination entitled the plaintiff to go to the jury. On his direct examination Davis testified that the plaintiff “started to jump” “just as the car got about in the dead centre of the curve” at the junction of Lafayette and New Derby Streets. That he “then” spoke to the motorman and told him to stop “as quick as he could to see where that fellow went to.” “I said, ‘You better a damn sight stop the car as soon as you can to see where in hell that fellow went to’” “[I] said this in a ‘kind o’ sharp, quick and commanding’ tone of voice.” But (so this witness testified) the car went “about sixty-five paces ‘rather short,’” before it came to a stop. If a “rather short” pace be taken to
Exceptions sustained.