188 Mass. 427 | Mass. | 1905
The plaintiff Donahue was driving a milk wagon belonging to the other plaintiffs. On the morning of June 17, 1901, about seven o’clock, having been on the wagon since two o’clock in the morning, and having finished his deliveries he was on his way home. Driving down Westville Street in Dorchester intending to cross Geneva Avenue to go up Topliffe Street which leads out of Geneva Avenue near its intersection with Westville Street, as his team was crossing the railway tracks it was run into by an outward bound street car coming down Geneva Avenue and the team was injured as well as the driver.
At the trial of the actions which were to recover compensation for the injuries so received the plaintiff Donahue testified as a witness, and five other persons who at the time of the collision were near the place where it occurred and who saw the collision were also called in his behalf and testified. There was no other material evidence relating to the question of liability. At the close of the plaintiffs’ evidence the presiding
Whether it was. right depends upon whether there was evidence of due care on the part of the plaintiff Donahue and evidence of negligence on the part of the defendant’s servants who were operating the car.
We have read with care the report of the evidence set out in the bill of exceptions and are of the opinion that the case should have been left to the jury.
It is evident that the view of Geneva Avenue from the part of Westville Street down which Donahue was driving as he approached the avenue was considerably obstructed by trees and buildings, and that to cross the railway tracks and turn into ToplifEe Street was to incur the danger of a collision with street cars. Ordinary care on the part of Donahue required of him to proceed slowly, with the danger in mind, and exercising all his powers of observation to appreciate and avoid it.
His own testimony and that of the other witnesses is that he was driving slowly. His own testimony is that as he came down Westville Street he looked and listened and did not see anything and did not hear anything. We think this was enough to require the question of his due care to be left to the jury. Perhaps the crossing was such a dangerous one that ordinary care would have required him also to stop before actually driving upon the crossing and to ascertain positively that no car was approaching. But this cannot be ruled as matter of law, nor can it be ruled as matter of law that it was negligence on the part of his employers to put their team in charge of a man whose work began at such an hour of the night that he might be expected to be sleepy if not asleep when driving home at seven o’clock after having completed his deliveries.
There was much evidence that the car was moving at a fast rate of speed as it approached the intersection of the streets. Such of the eye witnesses as were so placed as to see both the car and the team expected the collision. Hone of the witnesses heard any gong or bell rung or any other warning given by those in charge of the car of its approach, although all of the witnesses were in positions where if a bell had been rung or
The difference in the nature of the locality and in the circumstances which attended the collision distinguishes the case from that of Saltman v. Boston Elevated Railway, 187 Mass. 243. See Kelly v. Wakefield & Stoneham Street Railway, 179 Mass. 542; McCarthy v. Boston Elevated Railway, 187 Mass. 493.
Exceptions sustained.
