306 Mass. 231 | Mass. | 1940
On December 15, 1935, at about nine o’clock in the evening an automobile driven by the plaintiff Ryan was in collision on Highland Avenue, Salem, with a street car of the defendant. Ryan was injured, and his companion, Ellen Marturano, was killed. Her administrator sues for death, a count for conscious suffering having been waived. Ryan’s case is for personal injuries. The cases were tried before a jury upon the reports of an auditor and other evidence. At the conclusion of the evidence, the trial judge, subject to the plaintiff’s exception, allowed the defendant’s motion for a directed verdict in the Ryan case, and submitted the death case to the jury which returned a verdict for the plaintiff. Thereafter the judge allowed the defendant’s motion for entry of verdict for the defendant in the death case under leave reserved (G. L. [Ter. Ed.] c. 231, § 120), and the plaintiff excepted. These exceptions present the' only questions for decision.
Barcellona Avenue, an unlighted private way and “practically a rough narrow lane rarely used,” leads to the right from Highland Avenue, a public way and main artery of travel, as one is proceeding from Salem toward Lynn. The double tracks of the defendant are within the limits of Highland Avenue and on the northwesterly side of the travelled portion of the way. These tracks are elevated about six inches from the roadbed and there is no travel over them in the immediate vicinity except at narrow entrances to private ways, including Barcellona Avenue, where the space between the tracks is graded to the level of the highway.
The jury could have found that on the night in question, Ryan and the deceased were driving from Lynn on Highland Avenue to Barcellona Avenue where they intended to park. It was dark and raining very hard. They passed Barcellona Avenue without observing it, whereupon Ryan continued on about seven or eight hundred feet to a filling station, turned in, stopped, looked up and down the road, saw nothing and then proceeded back toward Lynn on Highland Avenue.
From the filling station there is a substantial downgrade for about three or four hundred feet, and then the grade rises and is somewhat sharp to Barcellona Avenue and beyond. The jury could have found that the street car was proceeding downgrade from the filling station at a rate of speed of from thirty-five to forty miles an hour; that before the collision it did not slow down; and that, after the collision, the automobile was pushed up the tracks about one hundred feet. The street car had a “golden glow” lamp which threw a light ahead from two to three hundred
We are of opinion that it was for the jury to determine whether the motorman was negligent. The tracks were within the limits of the public highway, and, although Barcellona Avenue was a private way, the fact that travellers might turn into it could not be disregarded by the motorman. Mahoney v. Boston Elevated Railway, 271 Mass. 274, 278. In the operation of the car he did not have an exclusive right of way. He and the occupants of the automobile had the reciprocal rights and duties of travellers upon a public highway, subject only to the limitation that there should be no unreasonable interference with the progress of the car which, from the nature of things, could move only upon its rails. The motorman might anticipate that there would be no unreasonable obstruction of his narrow pathway, but he had no right to expect that it would be wholly unimpeded. Jeddrey v. Boston & Northern Street Railway, 198 Mass. 232, 234. Callahan v. Boston Elevated Railway, 205 Mass. 422, 423. Sellon v. Boston Elevated Railway, 208 Mass. 507, 509. Farris v. Boston Elevated Railway, 210 Mass. 585, 587. Upon the permissible findings as to the range of lights of the street car, both in the direction in which it was proceeding and to its sides, the rate of speed at which the automobile was travelling and its progress across the tracks, the rate of the unchecked speed of the car on the downgrade, and the conditions as to darkness and rain, it was for the jury to determine whether the motorman was operating his car reasonably, and whether he should have seen the automobile sooner than he did and at a time when he could have avoided the collision. Fallon v. Boston Elevated Railway, 201 Mass. 179,
The defendant contends that Ryan was guilty of contributory negligence as matter of law under the rule stated in several cases, examples of which are Fitzgerald v. Boston Elevated Railway, 194 Mass. 242, 243, 244, and cases cited, Cokinos v. Boston Elevated Railway, 209 Mass. 225, 226, and Emery v. New York, New Haven & Hartford Railroad, 302 Mass. 578, 583. The physical facts that could have been found are not so clear as to show that the car was within Ryan’s vision at the time when, according to his testimony, “there was nothing coming.” Jeddrey v. Boston & Northern Street Railway, 198 Mass. 232, 234. Foster v. Boston Elevated Railway, 214 Mass. 61, 63. See White v. Lewis, 305 Mass. 450, 453. It cannot be said as matter of law that when he looked to the right, as he said he did, he should have seen the car. It is unnecessary to decide whether, if it was in sight, he was negligent in proceeding to cross the tracks. See Fallon v. Boston Elevated Railway, 201 Mass. 179, 182; Salisbury v. Boston Elevated Railway, 239 Mass. 430, 432-433, and cases cited. “Whether he ought to have taken the precaution to look
■ The auditor found that the deceased was not in the exercise of due care at the time of the collision "as she failed to observe the approaching trolley car until a fraction of a second before the crash, when . . . [she] screamed, and I find that she entrusted her safety entirely to Ryan . . . .” He made a further finding that Ryan turned to his right without looking when he could have seen with certainty the trolley car, and he stated that there was “no evidence that the . . . [deceased] looked to the right as the . . . [automobile] turned across the trolley tracks or warned Ryan of impending danger.” Apart from the auditor's report, the only evidence of the deceased's conduct came from Ryan who testified that he could not remember whether she looked to the right or not; that there was no talk between them at that time and that he could not remember that she said or did anything. The binding force and effect of an auditor's finding of fact, unshaken by other evidence, are settled. Cook v. Farm Service Stores, Inc. 301 Mass. 564, 566. Whether, in the circumstances, she was negligent in entrusting her safety to Ryan was for the defendant to establish. (G. L. [Ter. Ed.] c. 231, § 85.) There is no finding of the auditor that she was negligent in this respect and the record is silent as to this matter. King v. Weitzman, 267 Mass. 447, 449. In the circumstances, it could not have been ruled as matter of law that the deceased was guilty of contributory negligence in entrusting her safety to Ryan. Bessey v. Salemme, 302 Mass. 188.
The categorical finding of the auditor that the deceased was not in the exercise of due care, for the reason that she
It follows that the exception in the Ryan case is sustained; in the Marturano case the exception is sustained, the verdict for the defendant under leave reserved is set aside, and judgment is to be entered for the plaintiff on the verdict of the jury.
So ordered.