Niles v. Boston Elevated Railway Co., 230 Mass. 316

Niles v. Boston Elevated Railway Co.

230 Mass. 316 | Mass. | 1918

De Courcy, J.

The Watertown car on which the plaintiff was a passenger went no farther than the car barn on Galen Street. The car for Newton was waiting a short distance ahead, on the same track, and the conductor gave her a transfer check for that car. In response to his call all the passengers left the car by the rear door, the plaintiff being the last one to alight. It could be found that as she stepped to the street an automobile came up, and proceeded slowly at the right of the plaintiff as she walked

in the direction of the Newton car. She was walking alongside the Watertown car, about two feet from it, and midway between it and the automobile, and had taken three or four steps when she was struck in the back by the overhang of the car as it swung round the sharp curve leading into'the car barn.

There was evidence for the jury of the plaintiff’s due care. As the accident happened May 25, 1915, the due care statute (1914 c. 553) supplied a presumption in her favor, and made her contributory negligence an affirmative defence to be proved by the defendant. Further, the presence of the automobile in the narrow street left her a space only about four feet wide in which to proceed to the Newton car directly ahead; and she followed in the line of the other passengers. Her testimony as to whether she knew the Watertown car was going to turn into the car barn was conflicting.

*319The question of the defendant’s negligence is close. It was decided when the case was here before that the plaintiff was not a passenger at the time of the accident. Niles v. Boston Elevated Railway, 225 Mass. 570. But she was rightfully using the public way, and it was the duty of the defendant to use reasonable precaution to avoid injuring her. Bryant v. Boston Elevated Railway, 212 Mass. 62. The jury could find that the conductor closed the door and started the car round the curve immediately after the plaintiff alighted; that the car was a large pre-payment semi-convertible one, which, in swinging round this curve, would extend five feet two and one half inches from the outer rail; that he should have anticipated that she was still alongside the car, continuing her journey in pursuance of the contract of transfer to the Newton car issued by him, and was prevented by the automobile from getting far enough from the car to escape being hit if it should then proceed upon the curved track. In our opinion it was a question of fact for the jury to determine whether the conductor was negligent in starting the car while the plaintiff was in such a perilous situation, and before she had an opportunity to reach a place of safety, without even warning her of the danger unappreciated by her to which she was exposed. Bryant v. Boston Elevated Railway, supra. White v. Connecticut Co. 88 Conn. 614. Walger, v. Jersey City, Hoboken & Paterson Street Railway, 42 Vroom, 356. This was not the ordinary case where a pedestrian on the street fails to move or remain far enough from the track to avoid being struck by the rear of an approaching car as it swings around a curve. See Widmer v. West End Street Railway, 158 Mass. 49; Brightman v. Union Street Railway, 216 Mass. 152; Miller v. Public Service Corp. 86 N. J. L. 631; Gannaway v. Puget Sound Traction, Light & Power Co. 77 Wash. 655; Kuhn v. Milwaukee Electric Railway & Light Co. 158 Wis. 525; L. R. A. (N. S.) 1915 C 609 note.

On the evidence the case ought to have been submitted to the jury; and in accordance with the terms of the report judgment is to be entered for the plaintiff in the sum of $1,500.

Ordered accordingly.