Johnson v. Boston Elevated Railway Co.

252 Mass. 300 | Mass. | 1925

Sanderson, J.

This is an action of tort for injuries to the plaintiff’s automobile resulting from a collision between it and one of the defendant’s streét cars on Boylston Street in Boston. The trial judge directed a verdict for the defendant and reported the case.

The automobile, which had a wheel base in excess of one hundred and thirty inches, was being operated by the plaintiff’s chauffeur, and the back seat was occupied at the time by the plaintiff and two others. Before the accident the automobile had been parked diagonally to the sidewalk with the front end toward the curb, on the right hand side of Boylston Street, inbound, about half way between Hemenway Street and Massachusetts Avenue; the front end being nearer Massachusetts Avenue. There was testimony upon which the jury could find that when the chauffeur got in to start the automobile, he saw the street car of the defendant stopped at Hemenway Street a hundred or more feet away, with some people standing near it. He started to back the automobile and watched through the rear window and at that time the car was nowhere near him. He stopped the automobile at an angle with the track and was getting ready to start ahead but had not shifted gears, when the car hit the automobile on the left rear corner. The force of,the collision drove the automobile five or six feet ahead, pretty well up to the curbstone again, and the car went six or seven feet after the collision. The chauffeur did not see the car start. He first saw it in motion when the automobile had backed out from the curbing and was at a standstill in the street and he did not know that it was in a position where the street car would hit it. There was evidence that other automobiles were “parked at that section”; that the plaintiff’s automobile backed out slowly; and that the car at the time of the accident was moving at the rate of ten to twelve miles per hour. The part of the car which came in contact with the automobile was the front right a little toward the side, almost on the corner, and there was a mark along the side of the car where it had been in contact with the automobile. The defendant offered no evidence.

The plaintiff was entitled to have the case submitted to the jury. The question whether her chauffeur exercised reasonable care in backing the automobile from the curbing preparatory to starting, when and as he did, was one of fact. Hall v. Bay State Street Railway, 218 Mass. 119. Driscoll v. Boston Elevated Railway, 223 Mass. 533. O’Brien v. Boston Elevated Railway, 247 Mass. 253. Sharp v. Boston Elevated Railway, 251 Mass. 106. The fact that the chauffeur saw the car at a standstill, apparently to take on passengers, before he started the automobile backward and the further fact that he looked back as the automobile was moving, distinguish this case from Birch v. Athol & Orange Street Railway, 198 Mass. 257.

The jury might have found that the motorman was negligent either in not reducing the speed of the car enough to avoid the accident, as he saw or should have seen the automobile backing slowly from the sidewalk toward the tracks, Bombard v. Worcester Consolidated Street Railway, 234 Mass. 1, Driscoll v. Boston Elevated Railway, supra, Lawrence v. Fitchburg & Leominster Street Railway, 201 Mass. 489, 492, or in not ascertaining that the car would hit the automobile when he undertook to pass it, Eldredge v. Boston Elevated Railway, 203 Mass. 582, Carroll v. Boston Elevated Railway, 205 Mass. 429.

In accordance with the terms of the report, judgment is to be entered for the plaintiff for $751.88 with interest from the date of the writ.

So ordered.