313 Mass. 326 | Mass. | 1943
This is an action of tort to recover for the death and ■ conscious suffering of the plaintiff’s intestate, resulting from an accident which occurred on September 28, 1937, when he was struck by one of the defendant’s cars as he was crossing Beacon Street, a public highway in Brookline. The answer was a general denial and an allegation of lack of due care of the intestate. The plaintiff waived counts for wanton and reckless conduct of the defendant. The jury returned verdicts for the plaintiff upon counts based upon the negligence of the defendant but the judge, under leave reserved, and subject to the exceptions of the plaintiff, ordered the entry of verdicts for the defendant. The judge then reported the case to this court with the stipulation that if his ruling admitting evidence proving that the place where the accident occurred was duly re
The defendant did not within the time prescribed by G. L. (Ter. Ed.) c. 231, § 30, make any special demand upon the plaintiff to prove that the site of the accident was located within a public way, and the plaintiff contends that the defendant was thereby barred from proving that the place where the intestate was injured was situated upon a reservation which had been set apart by the proper authorities acting under G. L. (Ter. Ed.) c. 82, § 34, as a space for the operation of street railway cars. The failure of the defendant to make a demand according to said § 30 would doubtless bar it from contesting the allegation of the declaration that the intestate was injured upon a public way. Cabana v. Holyoke Conclave, 160 Mass. 1. Lonergan v. American Railway Express Co. 250 Mass. 30. Hirrel v. Lacey, 274 Mass. 431. Kenney v. Boston & Maine Railroad, 301 Mass. 271. But the defendant never denied that the accident occurred upon a public way, and the evidence that it introduced in reference to the locus was based upon the assumption that it was within the limits of a public way, and it sought to show also that- the locus was within a portion of the way the use of which, in so far as traffic was concerned, was restricted to the operation of street railway cars. The establishment of such a reservation was the means employed to regulate traffic upon the way. The use of the reservation limited to the operation of street railway cars was not inconsistent with the purposes for which the way was laid out and constructed, and the setting apart of a portion of the way for this particular but common method of travel did not impose any additional servitude upon the way. The portion of the street occupied by the reservation continued as a part of the way. Eustis v. Milton Street Railway, 183 Mass. 586. Farrington v. Boston Elevated Railway, 202 Mass. 315. The plaintiff misconceives the purpose for which the evidence was admitted. The evidence was confined to proving that the locus was set apart exclu
There was no error in permitting the defendant to show that the plaintiff’s intestate was injured while travelling across a portion of the public way reserved for the operation of street railway cars, and in the absence of any evidence of wanton and reckless misconduct of the defendant verdicts were properly ordered to be entered for the defendant. Crowell v. Boston Elevated Railway, 234 Mass. 393. Treen v. Boston Elevated Railway, 253 Mass. 605. Van Poppel v. Boston Elevated Railway, 258 Mass. 389. Fernald v. Boston Elevated Railway, 260 Mass. 78. LaBelle v. Boston Elevated
Judgments for the defendant.