275 Mass. 145 | Mass. | 1931
These three cases, which were tried together, are before us upon the plaintiffs’ exceptions to orders directing the entry of verdicts for the defendant, and to certain rulings in the exclusion of evidence at the trial. We find no error. The injured persons were standing upon the roughly ballasted roadway of the street railway in what was, practically, a part of the highway reserved for the use of the railway, where they were struck by the side of a rapidly moving street car. Two of them, Rocco and Renwick, had been riding in an automobile which had run out of gasoline and had a flat tire and was standing, stalled and unlighted, parallel with the ballasted shoulder at the edge of the travelled portion of the roadway, close to the shoulder and within about thirty-four inches of the nearest rail of the car tracks. The third, Gilchrist, had come from an automobile which had passed the first and then stopped about twenty or thirty feet beyond it. He had dimmed the lights of his automobile and left it standing in the travelled way close to the shoulder, while he went back to make inquiries. All were between the first automobile and the nearest rail of the street car track. All were familiar with the sparsely inhabited locality and knew that cars passed upon the tracks frequently at high speed. The hour was about eleven twenty o’clock on a cold and cloudy November night. There was a lighted electric street lamp about one hundred feet away to the west, and another about three hundred feet
The evidence required findings that Gilchrist, Rocco and Renwick failed to use the care of reasonable men to guard themselves from injury. They had put themselves unnecessarily in a place of danger, close to, if not absolutely in the path of any passing car; and had taken no care to guard against injury. The serious consequences of the accident properly could not blind the trial judge to the legal effect of the evidence. The case is governed by Will v. Boston Elevated Railway, 247 Mass. 250, Loyle v. Boston Elevated Railway, 260 Mass. 404. See also Notaro v. Boston Elevated Railway, 273 Mass. 296. All the circumstances appeared in evidence. There was no occasion for the operation of G. L. c. 231, § 85. Loyle v. Boston Elevated Railway, supra, at page 406. We need not" consider whether there was evidence to establish negligence of the motorman, who testified that he did not see the group close to the track until he was abreast of the Gilchrist automobile, and then did what he could to stop.
A witness, called by the plaintiffs, testified to statements made by the motorman on the night of the accident regarding his headlight and his ability to see to a distance and to
The plaintiff Benwick had alighted from his automobile, gone to the rear door on the side toward the tracks, leaned in and begun a search for tools under the rear seat, when he heard Gilchrist’s automobile pass and stop. He straightened up and spoke with Gilchrist when he came back. In. his direct testimony after he had described the positions of Gilchrist, Boceo and himself, he was asked: “Now, at the time you started to fix your tire, took your tools out, did you think you were in a safe place to do that work?” He had said in answer, “I intended to- — •” when counsel for the defendant said “Wait,” and the judge said “Excluded.” His counsel asked an exception. The judge said “You may show where he was.” His counsel continued “I offer to show by this witness that when he took his position alongside the car he considered himself in a safe position”.; and the judge replied “I shall admit the offer. I exclude it.” An exception was there saved. The ruling was right. In substance this was the offer of the opinion of the witness with regard to the safety of his position — a matter for the determination of the jury after learning the facts in regard to the position. Such evidence is not admissible. Whitman v. Boston Ele
Exceptions overruled.