Le Baron v. Old Colony Street Railway Co., 197 Mass. 289

Le Baron v. Old Colony Street Railway Co.

197 Mass. 289 | Mass. | 1908

Morton, J.

This is an action to recover for injuries and damage to person and property caused by a collision between a car of the defendant company and a wagon in which the plaintiff was driving. The accident occurred in Hingham about four o’clock in the afternoon on September 4, 1908, at the junction of Main and Water Streets. The defendant company maintained and operated a single track on Main Street close to the easterly sidewalk. The plaintiff was driving slowly, with his horse at a walk, as he testified, in a southerly direction along Main Street “ in about the middle of the travelled part of the road ” between the track and the sidewalk on the westerly side of the street. When he got opposite Water Street he turned to cross the track for the purpose of going into Water Street. He testified that before he started to cross, he stopped and looked both ways and listened and neither saw nor heard any car and then drove on. Before he got across he saw a car coming southerly and started up his horse in an effort to get across, but before he could get across *291the car struck the hind wheel of his wagon throwing him out and causing the injuries and damage complained of. The plaintiff testified that he was seventy years old, but was in full possession of his faculties of sight and hearing and was familiar, and had been for a long time, with the running of the electric cars along Main Street by Water Street. The afternoon was bright, and at the trial the plaintiff estimated that the distance at which a car could have been seen northerly from Water Street was at least three hundred feet. Other witnesses estimated that the distance was much more. The evidence as to the speed of the car was contradictory. One of the plaintiff’s witnesses said that the car was going quite fast, “ fifteen miles an hour sure,” another witness testified that it was going very much faster than usual, and the plaintiff testified that it was going very fast. Witnesses for the defendant testified that it was going slow, from five to seven miles an hour. The evidence was also contradictory as to whether there was any slackening of the speed before the collision, witnesses for the plaintiff testifying that there was not and witnesses for the defendant that there was. There was also testimony tending to show that the speed was accelerated just before the collision. There was also evidence tending to show that the regular motorman was absent and that the motorman who was taking his place on the day of the accident was of limited experience. It is difficult to understand how, if the plaintiff had looked and listened, as he testified that he did, before attempting to cross the track, he could have failed to see the car. It is equally difficult to understand how, if the car was going no faster than the defendant’s evidence tended to show that it was and the motorman was exercising due care, he could have failed to stop the car in time to avoid a collision. But it is not for us to pass upon the weight of the evidence. In view of the contradictory nature of the evidence in regard to material matters it cannot fairly be said, we think, that the evidence was so conclusive in regard to the plaintiff’s want of due care or the absence of negligence on the part of the defendant as to warrant the court in directing a verdict for the defendant. It is only when “ the court can find no evidence which, in its deliberate and ultimate judgment, is entitled to be weighed” that “ the jury should be instructed in terms that there is no evidence to support the *292burden of proof which rests upon the party.” Hillyer v. Dickinson, 154 Mass. 502. See O’Leary v. Haverhill & Plaistow Street Railway, 193 Mass. 339; James v. Interstate Consolidated Street Railway, 193 Mass. 264; Stubbs v. Boston & Northern Street Railway, 193 Mass. 513; Harris v. Fitchburg & Leominster Street Railway, 193 Mass. 56; Halloran v. Worcester Consolidated Street Railway, 192 Mass. 104; Williamson v. Old Colony Street Railway, 191 Mass. 144; Chaput v. Haverhill, Georgetown & Danvers Street Railway, 194 Mass. 218.

Hxceptions overruled.