Lawrence v. Fitchburg & Leominster Street Railway Co.

201 Mass. 489 | Mass. | 1909

Sheldon, J.

The jury might have found upon the evidence that the automobile in which the plaintiffs were riding became stalled in close proximity to the defendant’s track, that this was without any negligence on the part of either plaintiff, and that although the male plaintiff, hereinafter called the plaintiff, endeavored to start his automobile and get it away from its position of danger, and did everything in this behalf which was required by due care, he was unable to do so, and it was run into by the defendant’s car and damaged. If a finding that this collision was due to negligence of the defendant’s servants was warranted, then it is evident that the plaintiff could recover for the damage thus caused to his automobile; and this presents the first question to be answered.

It was a dark night; whether it was foggy or not was in dispute. The defendant’s track was on the easterly side of the road, outside of the travelled part of the highway. The space between the rails was not macadamized, but was grass-grown and rough. East of the tracks, the ground was rough and there were piles of ties and rails. The plaintiff testified that he saw the defendant’s car approaching his stalled automobile when it was as much as five hundred feet away, and the jury, in spite of the contradictory testimony, might find that the defendant’s motorman could see the automobile from as great a distance. There was evidence, although this was disputed, that the rear light on the plaintiff’s automobile was burning and that the front lights shone back a long distance from the car. The plaintiff testified that the car came on very rapidly. Different witnesses put its speed at from twenty-five to thirty miles an hour. Mrs. Lawrence testified that its speed was not noticeably reduced until the time of the collision, although she heard, the brakes put on when she stood up and waved her hand to the motorman. This evidence was contradicted; but it was for the jury to say what testimony was to be believed.

Upon these facts it cannot be said as matter of law that the conduct of the defendant’s servant was free from negligence. It is true that the defendant was not bound to anticipate that any one would be driving upon the track outside of the travelled part of the road; but the jury might find that in the exigencies of travel, the duty of turning out for other vehicles might at any time bring and keep for some time a carriage or automobile dangerously near to the track. The liability of such a machine as the plaintiff’s to become stalled might be found to be a matter of common knowledge. But the decisive consideration on this part of the case is that the jury might find that the motorman either did see, or, in the exercise of proper diligence ought to have seen the plaintiff’s machine at a distance of some hundreds of feet, and that he ought very soon to have noticed that it was stationary and might well be stalled, and that due care required him thereupon to reduce his speed to such a rate that when he saw the full emergency, when he saw or ought to have seen Mrs. Lawrence standing up in her seat and signalling to him, he might have stopped his car and avoided any collision. This warranted a finding that the collision was due to his negligence; and it follows that the plaintiff was at least entitled to recover for the damage to his automobile, and that the third and sixth instructions requested could not have been given.

But somewhat different questions are raised upon the other requests for instructions. '

The plaintiff and his wife both realized fully their dangerous position. They knew that cars passed the place about once in fifteen minutes. They had overtaken and passed this very car about one mile back from the place of the accident. After their machine was stalled and while the plaintiff was endeavoring to crank it and get it into motion, they saw the headlight of this car, at a distance which the plaintiff at first said in his testimony “ might have been one thousand feet,” later putting it at “ fully seven hundred feet,” and afterwards at “ about five hundred feet away when I first saw it.” Mrs. Lawrence however made no effort to get out of ■ the car, and merely, when the car was about one hundred feet away, stood up and signalled with her hand to the motorman. The only effort which the plaintiff made to get himself or his wife out of their perilous position was that, in his own words, he “ did the best [he] could to crank the car, and used [his] best effort to start it.” It is true that the machinery of the automobile would have been in the way of Mrs. Lawrence’s getting out of it on the right hand side, which was that away from the car; and the plaintiff testified that it would have been unsafe for her to step in front of the approaching car, even when it was five hundred feet away, coming at the rate that it was. He said in direct examination that the reason why he did not get out of the way was because he thought the car would stop. In cross-examination he said that it never occurred to him to get out of the way.

Mrs. Lawrence testified that she “ heard the wires in the distance jingling,” looked back and saw the electric car “just coming round the corner.” This was at a distance of seven hundred feet from where the automobile was stalled. She called her husband’s attention to it and he looked around at it. She continued in her seat until, when the car was about a hundred feet away, she signalled to it as already stated. She testified that when she first saw the electric car coming around the corner she would have had plenty of time to get out, and that the reason she did not do so was because she thought the motorman would see the automobile and stop.

It is true, as has been argued by the counsel for the plaintiff, that a plaintiff is not to be charged with negligence because of a mere error of judgment, especially when the circumstances are such as to call for speedy decision and action. Kerr v. Boston Elevated Railway, 188 Mass. 434. Creavin v. Newton Street Railway, 176 Mass. 529. Le Blanc v. Lowell, Lawrence & Haverhill Street Railway, 170 Mass. 564. Nor is the testimony of the husband, that it would have been dangerous for Mrs. Lawrence to leave the automobile when she first saw the car to be disregarded. But this, as we have already said, was not her view; for she assigned as the sole reason of her inaction her expectation that the car would stop. And the plaintiff’s continued effort to crank up his automobile was not due to any mistaken idea that he could thus get away with his wife and his machine before the car should strike them. He also trusted their safety to his hope that the motorman would look out for them and seasonably stop his car. If this was not their expectation, manifestly it would be much less dangerous for them to attempt to get out of the way than to wait and be run into. It was then obvious that the course which they both adopted, of trusting their safety solely to their expectation that the motorman would see them and would understand that their machine was stalled close to the tracks and could not be moved, while they preferred to stay in and by their vehicle and trust to him to save them from the risk that they were running with their eyes open, was not only more dangerous than for them to put their persons in a place of safety, but was the most dangerous course that they could have chosen. Even in an emergency, one must yet exercise reasonable care under the circumstances. Tozier v. Haverhill & Amesbury Street Railway, 187 Mass. 179. It is impossible to avoid the conclusion that both of these plaintiffs chose to put all the responsibility for their personal safety upon the defendant’s motorman. Upon their own testimony they made no attempt either to put themselves in safety or to give any warning to the motorman, either by signal or outcry or by running back, until it was too late to avoid the collision. It did not occur to them to act otherwise. They failed to take not only due care, but any care. As in Vizacchero v. Rhode Island Co, 26 R. I. 392, they preferred to rely wholly on the motorman.

Accordingly, the second, fourth and fifth requests should have been given.

There was no evidence of such wanton and reckless negligence on the part of the defendant’s servants as would enable the plaintiffs to recover for their personal injuries in spite of their own negligence, under the rule of Banks v. Braman, 188 Mass. 367. See the modification of the headnotes in this case in 192 Mass. 162.

In the case of Martha H. Lawrence the exceptions must be sustained. In that of Ivers P. Lawrence the same order must be made, unless he shall elect to take judgment for $250 only for the damage to his automobile, on the second count of his declaration, in which case the exceptions in his case will be overruled.

So ordered, ,