254 Mass. 302 | Mass. | 1926
This is an action of tort for injuries sustained by the plaintiff on January 15,1923, on Beacon Street, Somerville, by reason of a collision between an automobile truck which he was driving and a street car of the defendant. At the close of the evidence for the plaintiff the defendant rested and moved that a verdict be ordered in its favor. The trial judge denied the motion. The case was submitted to the jury and they returned a verdict for the plaintiff. By agreement of the parties, and at their request, the judge reported the case to this court with the stipulation that if he was right in refusing to order a verdict for the defendant judgment is to be entered on the verdict, and if the ruling was wrong judgment is to be entered for the defendant.
The jury could have found the material facts in support of the plaintiff’s contention, justified by the evidence, to be as follows: The plaintiff, as the driver of a Ford truck, at about 8:40 in the morning of the day of the collision went to the Harvard Garage on Beacon Street toward Porter Square, in Somerville, to take out his car. On the street and around the exit or entrance to the garage there was a foot of snow, and near the curbstone the snow was two or three feet deep. There were two lines of trolley car tracks running
On the testimony of a passenger on the electric car, it could have been found that the car slowed up at Kent Street but did not stop; that when the car was forty or fifty feet away the truck was on the track; that the back of the truck could be seen from the car; that the motorman was trying to stop the car but it was going very fast and did not stop before it “crashed the truck.” There was further evidence that warranted a finding that within the fifty or sixty feet over which the trolley car passed before the collision it was “coming along fast, about fifteen miles an hour”; that there was at this place a down grade of seven or eight inches; that it was rainy or misty at the time; that the “street car seemed to pick up speed, go faster, instead of stopping”; and that the car went twenty-five feet from the place where the collision occurred after hitting the truck.
The question of the plaintiff’s due care was for the jury. He seemingly took every precaution to ensure safe driving from the garage until he could make the turn to the right
We think the evidence that the electric car did not slacken speed as it approached the truck, but seemed to increase speed and go faster, even when the danger of collision was apparent, required the issue of the negligence of the defendant’s motorman to be submitted to the jury. Nelson v. Old Colony Street Railway, 208 Mass. 159. Shapiro v. Lyon, ante, 110.
The refusal to order a verdict for the defendant was right; and in accordance with the stipulation judgment is to be entered on the verdict.
So ordered.