230 Mass. 397 | Mass. | 1918
The plaintiff’s intestate alighted from a car between eleven and twelve o’clock on a dark night in a sparsely settled neighborhood in the country where the double tracks of the defendant were upon the southerly side of the highway and more than seven feet from its wrought part. He had come as a passenger from Fall River, and the car upon which he had travelled was on its way to New Bedford. The place of the accident was at a crossing leading from the highway to a lane where were some camps. The crossing consisted of planks against the rails. For a mile both to the east and to the west were no intersecting roads, and the land on one side of the tracks was swampy and wooded. Three other passengers got off at the same place, and the car started on its way. The tracks for at least a mile on each side ran in a straight line and the grade was nearly level one way and ascending the other. The direction of the tracks was approximately east and west. The car was an open one, but the curtains in front and on its left or north side were all down, so that a passenger could not readily see out on those two sides. There was plenty of testimony tending to show that when the car stopped the conductor called out “Watch the car in back,” or words to that effect, and that there were several cars following on the same track. The narratives of the three passengers who left the car at the crossing, respecting the actions of the deceased and the circumstances which attended him, were in substance these:
One Tolley testified that the deceased, when he left the car and was on the ground, looked back at the car following on the same track, which had its searchlight on, and the car they had left started up; after that the deceased started fo cross the track, but before he could get across, the car from New Bedford struck him.
One Gagnon testified that the deceased “got off the car, turning to his right, walking to the rear of the car and crossing the crossing on the other side, arid looked toward Fall River; and proceeded on, walking across the track, and then he was caught by the car coming from New Bedford;” that the car gave no signal; that the car from which they alighted passed the crossing, and that the rear platform was “hanging over the crossing;” that he saw the car from New Bedford because he “put his head out on the north side of the car” before he alighted and “saw the other car coming from New Bedford and at that time the other car had its searchlight going.” He knew where the deceased lived and anticipated that he “would go out on the street and walk up toward his camp;” that after starting up the lane, he thought of the car from New Bedford and turned around and “tried to holler at him, but it was too late;” that he saw the deceased as he started to turn and look toward Fall River, but did not see him again until he was on the track where he was struck.
One Howland testified that he was sitting on the front seat of the car, that after stepping off the. car he glanced down the track toward New Bedford and saw the car coming and saw its headlight; that he saw the deceased getting off the car and he "pro
The motorman of the car which struck the deceased testified that the first thing that directed his attention to the accident was the breaking of glass near the crossing; that at that time his car was going about twenty miles an hour; that about two hundred feet before he reached the crossing he blew his whistle; that nothing interfered with his vision except headlights on automobiles in the highway, which blinded him so that he could not see, and he thereupon threw off his arc light in accordance with one of the rules of the defendant; that he saw the car from Fall River going toward New Bedford about three hundred feet from the scene of the accident, and that he did not see the intestate before striking him.
There was other evidence much more favorable to the defendant, but that is now immaterial because in this inquiry the evidence must be considered in its aspect most favorable to the plaintiff.
Before the enactment of St. 1914, c. 553, there would have been no case for the jury. The evidence would not have been sufficient to support a finding that the burden of proof resting upon the plaintiff to show that her intestate was actively and actually in the exercise of due care had been sustained. Kennedy v. Worcester Consolidated Street Railway, 210 Mass. 132. O’Brien v. Boston Elevated Railway, 217 Mass. 130. Adams v. Boston Elevated Railway, 219 Mass. 515. Hayes v. Boston Elevated Railway, 224 Mass. 303. Cohen v. Boston Elevated Railway, 202 Mass. 66. But important changes have been wrought by that statute. The burden of proving contributory negligence is now placed on the defendant and the person injured is presumed to have been in the exercise of due care. All the facts surrounding this injury are not in evidence. The conduct of the deceased is not fully disclosed by the evidence. There are crucial points upon which it is silent.
The record is bare of testimony as to the appearance of the car from New Bedford as one might have seen it from the position of the deceased just before he stepped into a place of danger. Whether the searchlight was turned off before he reached a point where he could have seen it, whether there were other lights on its forward end after the searchlight was turned off, whether the car was lighted inside and, if so, whether these lights by reason of the structure of the car or otherwise were such as to be visible to one nearly in
Although under some circumstances the evidence may be such as to require a ruling as matter of law that the burden of proof resting on a party has been sustained, where the evidence consists of conflicting oral testimony, or where on all the facts, more than one inference rationally may be drawn, it is a question of fact and cannot be ruled as matter of law. Duggan v. Bay State Street Railway, ante, 370, where the meaning and effect of St. 1914, c. 553, is discussed at large. The case at bar falls within the general rule and is not an exception to it. See Grant v. Boston Elevated Railway, 229 Mass. 219. If reference be had to Federal cases where the presumption and burden of proof are like those established by the statute, the case at bar resembles Baltimore & Potomac Railroad v. Landrigan, 191 U. S. 461, rather than Northern Pacific Railroad v. Freeman, 174 U. S. 379.
It is not necessary to determine whether St. 1914, c. 553, § 2, has made any change in the degree of care required in cases arising under the penalty death statutes. If it be assumed that the rule of Hudson v. Lynn & Boston Railroad, 185 Mass. 510, remains unaffected, the presumption as to due care raised by the first section of the statute is co-extensive with the requirements of that rule, for it expressly is made applicable to actions or indictments for the recovery of damages for causing death.
The question of the negligence of the motorman of the car which struck the intestate was a fact to be decided on all the evi
Each case of this kind depends in large part upon its peculiar facts. The case at bar is not an instance of people getting or being upon the tracks at an hour or place where no rational expectation ought to anticipate such a thing, like Kupiec v. Warren, Brookfield & Spencer Street Railway, 196 Mass. 463, Johnson v. Guffey Petroleum Co. 197 Mass. 302, and Singer Sewing Machine Co. v. Springfield Street Railway, 216 Mass. 138, and it is not the sudden incursion of pedestrians in front of a car at a place where no one could reasonably foresee such an event, like Donahue v. Massachusetts Northeastern Street Railway, 222 Mass. 233, and O’Donnell v. Bay State Street Railway, 226 Mass. 418. The car which struck the deceased was approaching a place where cars frequently stopped to leave passengers, where one had in fact stopped a moment before; where passengers in the exercise of due care must get off the car at the extreme side of the highway and in order to reach the wrought path must pass over the tracks. It hardly could have been ruled as matter of law under these circumstances that it was not negligent for a motorman, so blinded by the lights of automobiles nearby that he could not see clearly, to proceed at the rate of twenty miles per hour after shutting off his headlight. There was no evidence of negligence on the part of the conductor of the car on which the deceased was a passenger. His warning, even if confined to the car following and not directed to the one coming on the other track, was no assurance of safety in that particular, and no evidence of negligence. Blackwell v. Old Colony Street Railway, 193 Mass. 222.
The exclusion of the question to the witness Robinson, as to the speed of the cars being forty miles per hour, was within the discretion of the presiding judge, which appears to have been exercised wisely.
i . The rule of the defendant governing the conduct of motormen operating cars "passing standing cars” was inadmissible upon the other facts shown. There was no evidence that the car from which the deceased had alighted was stationary at the time it was passed by the car in control of the motorman whose negligence is alleged to have caused the fatal injury.
The opening of the defendant’s counsel ought not to have been included in the bill of exceptions. It is not permissible as matter of right in the ordinary case. Of course, when admissions are made in the opening or otherwise in the course of a trial, they have binding force. McMahon v. Lynn & Boston Railroad, 191 Mass. 295, 299. But that does not mean that openings of counsel become parts of the record of a trial. Openings commonly are not made for the purpose of expressing admissions, and, as the trial progresses, there may be changes in the contentions of counsel. Commonwealth v. Retkovitz, 222 Mass. 245, 252. There is nothing in the opening as printed to indicate that it was intended as an admission or that it differed in any essential particular from the evidence introduced by the defendant.
Exceptions sustained.