Regan v. John L. Kelly Contracting Co., 226 Mass. 58

Regan v. John L. Kelly Contracting Co.

226 Mass. 58

| Mass. | 1917

Carroll, J.

The plaintiff, while a passenger on the front seat of an open street railway car, was injured, when the car came into collision with a motor truck belonging to the defendant. The jury found for the plaintiff. The defendant contended there was no evidence that it was negligent nor that the driver of the truck was acting within the scope of his employment, and moved that a verdict be directed in its favor. The motion was denied and the defendant excepted.

About five o’clock in the afternoon of June 12, 1913, on Washington Street near Union Park Street, the plaintiff was injured on a North Station car, which she had taken at Upham’s Corner. She testified that when she first saw the truck it was on her right, “just outside of those irons that holds the elevated road up,” “coming the same way the car did,] “just going to start to cross the street, ... I am not sure, but it came right in front of the car.... The front part of the truck was right outside of that [¡the supporting irons], and it was in that position when I saw it making for the track.” On this evidence the jury could find that the driver of the truck, moving in the same direction as the car, turned at this point and crossed the track. This evidence was contradicted, in part, by the driver of the truck, who testified that he came from an alleyway leading from Washington Street, went directly across the street and did not move alongside of the car in the same direction. He blew his horn as he approached the street, but gave no further signal; and, although there was nothing to obstruct the view, he saw the car for the first time when his wheels were upon the track, and he then made no effort to change the rate of speed at which he was moving. If the driver of the truck, going in the same direction as the car, suddenly turned in front of it, and without warning attempted to cross the tracks, the jury could have found him to have been negligent. Or, if crossing Washington Street from the alleyway, he gave no signal after leaving it, continued at the same rate of speed, and made no attempt to avoid the car, it could also have been found that he was careless.

The work of asphalting Union Park Street from Harrison Ave*60nue to Washington Street was going on and the truck was used in carting material to this place from a crusher on Columbia-Road. On the day of the accident, the driver was directed by the superintendent to dump the last load that day in a vacant lot back of some houses in this alleyway. He was returning from there and was on his way to the garage when the collision took place. This was sufficient evidence that the driver was acting within the scope of his employment. Robinson v. Doe, 224 Mass. 319.

Exceptions overruled.