210 Mass. 424 | Mass. | 1912
This action was brought by William E. Morrissey to recover for personal injuries; and he is hereinafter referred to as the plaintiff although the action is now being prosecuted by his administrator. The collision complained of occurred between six and seven o’clock, in the evening of January 31, 1908, at the corner of Dorchester Avenue and West Fourth Street in South Boston. The defendant company maintained double tracks on both streets. At the time of . the accident cars were running southerly on Dorchester Avenue
The plaintiff was driving a two horse, covered express wagon and was going southerly along Dorchester Avenue, with his right hand wheels close to the curb of the westerly sidewalk, when the collision occurred.
The trial judge
There was evidence on which the jury would have been warranted in finding that the motorman was driving his car slowly on account of the congested traffic; that the plaintiff’s team was proceeding in the same direction, a short distance ahead of the car and in plain sight, and apparently about to cross West Fourth Street; and that the motorman, without ringing any warning gong, entered upon the curved track which crossed the plaintiff’s path and ran the car into the wagon behind the forward left wheel. This made the question of the defendant’s negligence one of fact for the jury, notwithstanding that the witnesses called by it testified that the wagon ran into the car.
Although the case is closer on the issue of the plaintiff’s due care, this question also was for the jury on the testimony of his witnesses. Upon their story we have virtually á rear end collision, with no warning signal of the car’s approach. Kerr v. Boston Elevated Railway, 188 Mass. 434. Callahan v. Boston Elevated Railway, 205 Mass. 422. There is no direct evidence that the plaintiff listened, but he might well assume that the motorman would sound the gong before changing the course of the car and attempting to cross the path of the team. And if any duty to look devolved upon the plaintiff
Exceptions sustained.
Morton, J.