Nathan v. Boston Elevated Railway Co.

229 Mass. 62 | Mass. | 1918

Rugg, C. J.

This is an action of tort to recover compensation for damage to an automobile belonging to the plaintiff arising from a collision between it and an electric car of the defendant at the.intersection of two streets. The automobile was being driven by one Bain, and one Stoner was with him. The question of fact at issue was whether the collision was due to the negligence of those in charge of the automobile or of the motorman of the car. Both Bain and Stoner testified that they approached Brookline Avenue, one of the intersecting streets, at a low rate of speed, sounding a signal and looking out for electric cars. Bain testified further that he knew the cars ran on Brookline Avenue and that he knew the corner in question was a dangerous one for that reason. As bearing upon the due care of those in charge of the automobile, the plaintiff offered to show that as they approached the intersection of the two streets Stoner remarked to Bain, “Look out for the Brookline Avenue cars.” There was no reversible error in the exclusion of this offer of evidence. Whether those in charge of the automobile used due care or not in endeavoring to avoid collision with the electric car depended upon their conduct in view of all the circumstances. It did not depend upon their previous conversation. The driver of the automobile was familiar with the corner and knew that the cars ran upon the street. His testimony as to what he did shows, if believed, that he was acting in the light of his knowledge.

The case at bar is distinguishable from Belleveau v. S. C. Lowe Supply Co. 200 Mass. 237, 241, and Sullivan v. Scripture, 3 Allen, 564, because in both those cases the conduct of two people in active combination and a reliance by one upon the statements and acts of the other was involved in determining the care or negligence of each. There was co-ordination of effort by the two toward a common end, and the extent of dependence which one reasonably might place upon the other was material. In the case at bar a mere warning was given by one to the other in substance to exercise care, when according to the testimony of each he was already alert and using his faculties to that end. Proof of that fact was of no essential probative value.

The ruling of the trial judge presented no reversible error of law and his decision ought not to have been vacated by the Appellate Division. On the finding of the trial judge judgment should be entered for the defendant in the Municipal Court. Loanes v. Gast, 216 Mass. 197, 199.

So ordered.