205 Mass. 519 | Mass. | 1910
In the first case the plaintiff sues for personal injuries caused by a collision of the defendant’s car with the team which he was driving, while the second action is brought by the owner for damages to his horse and wagon. At the close of the evidence verdicts for the defendant were ordered, because the presiding judge
It is doubtless true, as the defendant strongly urges, that since the elimination of horse cars and the substitution of electricity passengers desire rapid transportation, and for their accommodation a heavier and more expensive equipment has been provided, with increased speed. But this demand, even when properly recognized within reasonable limits, does not relieve the carrier from compliance with the law of the road, subject only to the modifications often pointed out, that the path of the car is fixed, while travellers, either on foot or in vehicles, may use the entire way so far as it has been fitted and opened for public travel. Scannell v. Boston Elevated Railway, 176 Mass. 170, 173. Wright v. Boston & Northern Street Railway, 203 Mass. 569.
Although the general rule is established, that, where a highway crosses the tracks of a steam railroad at grade and when such conduct is necessary for his safety, a traveller who neglects to take the precaution either to look or listen for approaching trains before crossing, but passes on and is injured, cannot recover because he has failed to act with ordinary prudence, this rule of conduct, which has become a rule of law, has not been applied in favor of street railway corporations in their use of the public ways. Hennessey v. Taylor, 189 Mass. 583. Scannell v. Boston Elevated Railway, 176 Mass. 170, 173. O’Brien v. Lexington & Northern Street Railway, ante, 182. If so applied, it would not only unduly delay traffic on the principal streets of cities and towns which generally are selected for a franchise by the company, but would render the streets extremely dangerous for the accommodation of the general public, for whose use they were primarily designed. Common
The defendant in the management of the car at the time and place of the accident was required so to regulate its speed, and if necessary to sound the gong, that travellers using due care while passing upon the track from intersecting driveways or streets,
The plaintiff was passing down the driveway to turn into the street, when the team as it reached the track was struck by a car coming from the south. For a distance of about eighty-five feet above the track, the driveway on the south side was lined with trees and shrubbery in full foliage obstructing the view either of the track or of cars coming from that direction. But before reaching this point, at least three hundred feet of the track extending southerly from the intersection of the driveway could be clearly seen. The plaintiff in the first case, who was familiar with the vicinity, testified that at this point he leaned forward and looked down the track, but, not seeing a car he sat back and drove on at a moderate rate of speed, listening meanwhile for vehicles whose approach might require him to change
In passing upon the plaintiff’s conduct, his knowledge of the defendant’s method of operating its cars as to speed, and sounding the gong at intersecting streets, which he testified was not rung, was relevant. If from previous experience as a motorman in its employ or as a passenger he knew that ordinarily the defendant took these precautions, how far the presumption of their continuance and the presumption that the motorman would not act carelessly should have influenced him in deciding to proceed, were questions for the jury. Driscoll v. West End Street Railway, 159 Mass. 142. O'Brien v. Lexington & Northern Street Railway, ante, 182. Finch v. Mansfield, 97 Mass. 89, 92.
Nor is the case at bar governed by the decision in Ferguson v. Old Colony Street Railway, 204 Mass. 340, on which the defendant places much reliance. In that case, the plaintiff without taking any precautions drove directly in front of an oncoming car, which by the exercise of ordinary prudence he could have seen and avoided.
We are accordingly of Opinion that there must be a new trial, and, as the question of the defendant’s negligence has been argued and may then be presented, it should be decided. If upon the evidence which was sufficient for the purpose the jury were satisfied that the car was moving at a rate of speed for
Exceptions sustained.
King, J.
The accident occurred at the junction of the Rutan driveway and Warren Avenue in Plymouth. A single track of the defendant runs at the side of Warren Avenue where the Rutan driveway enters it at nearly a right angle, so that immediately upon emerging from the driveway it is necessary to cross the track to get into the road. The plaintiff in the, first case was driving from the Rutan driveway in an order and delivery wagon, belonging to the plaintiff in the second case, with a covered top and with sides of canvas or oiled duck. The plaintiff in the first case testified that in the summer preceding the accident he had worked for the defendant as a motorman and had operated electric cars over the same track. He testified that the rule of the railway company was for the motorman to run the cars slowly and ring the gong when approaching a driveway or crossing.