244 Mass. 510 | Mass. | 1923
The accident occurred in a sparsely settled locality on West Central Street, a public highway between Natick and South Framingham. North of the travelled portion of the road was an unwrought space which was occupied by double car tracks. The plaintiff and his brother Hugh at about nine o’clock on the night of January 5, 1917, were returning from South Framingham in an auto truck owned and operated by Hugh. The car skidded on the icy street over to the nearer or eastbound track; and after going some distance in that track the engine stalled. An electric car bound for Natick approached from behind, and the plaintiff and his brother pushed the auto upon the westbound track, and let the car pass. Soon after-wards the plaintiff noticed another electric car coming from Natick on this westbound track. The plaintiff’s testimony was that he saw it when about two hundred yards away; that his brother ran up the track and tried to stop it; but that the car continued on until it struck the automobile and he was thrown aside and injured. In the course of his cross-examination appears the following: “Q. But you cranked it for a while? A. Yes. — Q. And the car kept on coming all the time? A. Well, I didn’t look.—Q. You didn’t notice much about it? A. No.—Q. Did you see the car again after you first saw it two hundred yards away, until it struck? A. No. — Q. You didn’t pay any attention to it at all? A. No. I didn’t look.—Q. You didn’t pay any attention
The plaintiff had been employed as a chauffeur, and had also •done repair work on automobiles. This testimony as to his conduct at the time of the accident was in no respect controlled "by his remaining testimony or that of his brother, or the motorman, — the only witnesses to the accident. In Duggan v. Bay State Street Railway, 230 Mass. 370, which arose since the enactment of the due care statute (St. 1914, c. 553) it was said (page 379): “Where from the facts which are undisputed or indisputable, or shown by evidence by which the plaintiff is bound, only one rational inference can be drawn and that an inference of contributory negligence or want of due care, then the question of due care or contributory negligence is one of law for the court and a verdict for the defendant should be directed.” We are unable to draw any inference from the evidence except that the plaintiff’s lack of care contributed to his injury. Apparently he relied entirely on the motorman to bring the electric car to a stop before it reached the automobile. But the night was
Judgment must be entered on the verdict for the defendant; and it is
So ordered.