220 Mass. 124 | Mass. | 1915
At the time of the accident the defendant was operating a single track electric street railway between Brockton and Whitman. The track was in about the centre of Crescent Street, at its intersection with Plymouth Street, in Brockton, where the accident occurred.
Crescent Street runs in an easterly and westerly direction. Plymouth Street opens into Crescent Street from the north, and Crescent Place leads off the southerly side of Crescent Street about eighty-seven feet easterly of Plymouth Street. The distance from the cross walk at the head of Plymouth Street to the nearest or northerly rail of the track is about fifteen feet.
On the morning of the accident the plaintiff, who was a milk dealer, was riding with his driver in a one-horse, covered milk wagon, the cover of which projected over the seat in the form of a hood whose side coverings extended forward at the top farther than at the bottom. The back of the wagon was covered by a curtain, in which was a window about five inches long and two and one half inches wide.
Shortly before the accident the plaintiff had delivered milk at a house on Plymouth Street. The next delivery was to have been made on Crescent Place. After the last delivery the team passed down Plymouth Street in the direction of Crescent Street, the horse being driven by the plaintiff’s driver, one Martin. Both the plaintiff and Martin testified that when they arrived at a ppint about twenty feet northerly of the cross walk on Crescent Street they looked to the west and to the east for electric cars, and also listened, but that neither of them saw or heard a car. The evidence showed that their view to the west was partially obstructed by a building which stood on the northwesterly corner of Crescent Street.
There was evidence that, from the place where the plaintiff and
There was evidence that the horse was travelling at the rate of five or six miles an hour as they drove into Crescent Street, and that on account of the bad condition of the road on the southerly side they turned to the east and were proceeding on the northerly or left side of Crescent Street, when the hub of the front wheel on the right side of the wagon was struck by the car and the plaintiff was thrown out and injured, either by a kick from the horse or by reason of the wagon running over him.
From the evidence it appeared that when the collision occurred the horse had turned the corner and was facing toward the east, but that the wagon had not passed the corner far enough to become “straightened out” parallel with the sidewalk. There was also evidence that the part of the car that came into collision with the team was at the first window back of the vestibule.
The evidence was conflicting as to the speed of the car, as well as upon the question whether the gong was sounded or other warning was given by the motorman as the car approached the place of the accident. The plaintiff and his driver testified that they did not hear any gong or know of the presence of the car up to the time of the accident. A witness called by the plaintiff testified that no gong was sounded, and that the car was moving at the rate of thirty or thirty-five miles an hour. There was other evidence to show that it was moving at the rate of five or six miles an hour, and that the gong was sounded.
The defendant contends that upon all the evidence a verdict should have been directed for the defendant. It is apparent that the view of Crescent Street to the west was considerably obstructed by the building on the corner, at the place where the plaintiff and his driver testified that they looked for a car, namely, on Plymouth Street, twenty feet northerly of the cross walk. While they did not look again in the direction from which the car came, it is to be noted that the point from which they testified that they looked
We think that this evidence required the question of the plaintiff’s due care to be left to the jury.
It is to be observed that the driver of the team was not attempting to cross the tracks, but had turned into Crescent Street and was proceeding along the left side of the street at the time of the collision. It could not have been ruled as matter of law that the plaintiff was negligent in allowing his team to be driven so near the track as to be struck by the car. Logan v. Old Colony Street Railway, 190 Mass. 115. Vincent v. Norton & Taunton Street Railway, 180 Mass. 104. It could have been found that as the plaintiff’s team approached the cross walk at Crescent Street it slackened its speed and was driven slowly; and that the plaintiff and Martin, before coming out of Plymouth Street, looked in both directions for a car and listened until the time the team was struck. This evidence, if believed, warranted the jury in finding that the plaintiff used his senses actively for his protection.
It could not have been ruled as matter of law that the plaintiff was not exercising due care because he did not look a second time in travelling a distance of less than forty-five feet to the place where the collision occurred; nor could it be ruled as matter of law that the plaintiff was lacking in due care because the team was not stopped, before it was driven out on to Crescent Street, to ascertain whether a car was approaching. Carrahar v. Boston & Northern Street Railway, 198 Mass. 549, 552. Jeddrey v. Boston & Northern Street Railway, 198 Mass. 232.
There was an unobstructed view of Crescent Street, at the place of the accident, from the west for a distance of several hundred feet. If the jury believed the evidence that the car was running at a speed of thirty-five miles an hour as it came to Plymouth Street, without any gong being sounded or other warning given of its approach, it was plainly for the jury to determine whether the defendant was negligent. Orth v. Boston Elevated Railway, 188 Mass. 427. Kane v. Boston Elevated Railway, 218 Mass. 101.
In some of the cases relied on by the defendant the plaintiffs were injured at the intersection of streets while travelling on foot, Hall v. West End Street Railway, 168 Mass. 461; Itzkowitz v.
In Ferguson v. Old Colony Street Railway, 204 Mass. 340, much relied on by the defendant, the evidence showed that the plaintiff attempted to drive over a crossing which he knew to be dangerous without looking or listening or taking any precautions for his safety. That case is clearly distinguishable from the case at bar.
The exception to the refusal of the judge to give the eighth ruling requested by the defendant cannot be sustained, as it was covered in substance by the judge’s charge upon the question of the plaintiff’s due care.
The ninth request could not have been given in the form presented.
The exceptions to the admission of the two questions put to the witness Dillon, an inspector of the defendant company, must be overruled; if we assume that the questions were incompetent, the answers show that the defendant was not prejudiced. St. 1913, c. 716. Koplan v. Boston Gas Light Co. 177 Mass. 15.
Exceptions overruled.