186 Mass. 446 | Mass. | 1904
Though the evidence was conflicting, it appeared from the plaintiff’s statement that while he was driving along Washington Street, a public way in the town of Canton, it became necessary for him, in order to pass safely another traveller by carriage, to turn from the middle of .the street to
If the plaintiff as a traveller was found to have obeyed the law of the road in turning to his right to permit another conveyance to pass, then he was in the lawful use of that portion of the street occupied by the tracks of the defendant, and while neither of the parties had an exclusive use of the highway, each was required to observe a due regard for the rights of the other, and their respective privileges arising from such a concurrent use have been so fully defined by our decisions that no further discussion is now required in the consideration of this case. Commonwealth v. Temple, 14 Gray, 69. Galbraith v. West End Street Railway, 165 Mass. 572. White v. Worcester Consolidated Street
As the defendant does not claim that the plaintiff’s conduct was careless, but confines its argument to the single proposition that the testimony wholly fails to disclose any negligence on its part, the question presented for decision is whether there was any evidence which required a submission of this issue to the jury.
In the management of the car the defendant was required to take reasonable precautions not only to avoid a collision, but also if possible to prevent its too sudden approach, as this naturally would tend to further excite a horse clearly seen to be restive and that soon escaped from the control of the plaintiff.
But an examination of the evidence discloses that the car was running at a speed of not over “ five or six miles an hour ” when it came around the bend in the road, and at a point from two hundred and fifty to three hundred feet distant from the plaintiff, and though the gong was sounded, the plaintiff did. not testify that its ringing caused the fright of his horse, while the testimony of the defendant’s witnesses that the brake was applied promptly, remained uncontradicted.
If it was the duty of the defendant’s servants to anticipate the fact shown by common experience that travellers by carriage also might be using the highway at the same time, and the speed of the car and the skill with which it should be managed and controlled depended upon a proper recognition of these conditions, yet the car does not appear to have been running at an undue rate of speed, or to have been beyond the immediate control of the motorman ; for on the application of the brake its speed slackened and a collision was avoided, though the point at which it was stopped was in dispute.
It was said in Ellis v. Lynn & Boston Railroad, 160 Mass. 341, 350, which is among the cases relied on by the plaintiff, that: “ The motorman is supposed to know that his car is likely to frighten horses that are unaccustomed to the sight of such vehicles, while most horses aró easily taught after' a time to pass it without fear. It is his duty, if he sees a horse in the street before him that is greatly frightened at the car, so as to endanger his driver or other persons in the street, to do what he reasonably can in the management of his car to diminish the fright of the horse,
If this rule is applied to the conduct of the defendant’s servants in the case at bar, it is plain that, upon the discovery of the situation of the plaintiff, and the excitement of his horse, the motive power was turned off, the brake applied, and every proper effort made by them not only to prevent a collision, but to avoid further frightening the horse.
As no negligence on the part of the defendant was shown, a verdict was ordered rightly in its favor.
Exceptions overruled.
On cross-examination the plaintiff testified that the car was three hundred feet away, and later said that it was not so far away as that.