Sharp v. Boston Elevated Railway Co.

251 Mass. 106 | Mass. | 1925

Rugg, C.J.

There was testimony tending to show that the plaintiff, in order to pass a slow moving truck, turned his automobile on to surface tracks between posts supporting the elevated structure of the defendant; that before doing so he looked back a distance of fifty or sixty feet and saw no trolley car, and then put out his hand in token of intention to turn; and that after getting upon the rails he travelled ten or fifteen feet when the rear of the automobile was struck by a trolley car, which he had passed some distance back while it was at a standstill at a regular stopping place. The plaintiff might have been found to be in the exercise of due care. Jeddrey v. Boston & Northern Street Railway, 198 Mass. 232. Farris v. Boston Elevated Railway, 210 Mass. 585. The case at bar is distinguishable from Fitzgerald v. Boston Elevated Railway, 194 Mass. 242, in that here the circumstances do not compel the conclusion that the trolley car was in dangerous proximity when the plaintiff turned upon the tracks and that he must have been careless in not seeing it.'

There was testimony tending to show that the plaintiff used the usual signal to convey to other travellers on the street notice of his purpose to turn upon the track, that he was fully upon the rails with his automobile and travelled thereon some distance, and that there the trolley car struck his automobile squarely in the rear. These facts if found were enough to show negligence on the part of the defendant. O’Brien v. Boston Elevated Railway, 247 Mass. 253, and cases there collected.

A finding for the plaintiff cannot be pronounced erroneous in law on either point. Callahan v. Boston Elevated Railway, 205 Mass. 422. Carroll v. Boston Elevated Railway, 205 Mass. 429. Eustis v. Boston Elevated Railway, 206 Mass. 143. Hall v. Bay State Street Railway, 218 Mass. 119.

The case at bar on this point falls just on the other side of the line from Glennon v. Boston Elevated Railway, ante, 103, decided this day, where no signal was given to the motorman of the trolley car and where he had every reason to believe that no one would try to drive into the narrow space between the trolley car and the stationary tipcart.

Exceptions overruled.