Stuart v. Holyoke Street Railway Co.

210 Mass. 240 | Mass. | 1911

DeCourcy, J.

The plaintiff, a child of three and one half years, wandered from his home to a public street in Holyoke. When first noticed he was walking alongside a “ reach wagon,” with his hand resting upon some sixty foot rails that were upon the vehicle. The front and rear pair of wheels were from forty to fifty feet apart; and the plaintiff, who was nearer the rear than the front wheels, walked along with the conveyance for about one hundred feet, when he stopped and was struck by the right hand rear wheel. The horses were walking slowly and the driver was looking forward. No other children were around there except some newsboys on the sidewalk.

The plaintiff’s contention is that the defendant’s failure to have men in attendance upon the conveyance to protect him from being struck by the rear wheels constituted negligence, and that the case should have been submitted to the jury on that issue.

The judge was right in directing a verdict. The public ways are established and maintained for the general convenience of passage and traffic and for the reasonable and equal use of all. They are commonly and necessarily used by wagons of different lengths and for the transportation of large objects, such as machinery, merchandise and building materials. And this general use of the highways for traffic has greatly increased with the extensive application of gas, steam and electricity as motive power for vehicles and with the growth of business. Yet our attention has been called to no case, in all these varied uses of highways, where the courts have held it incumbent upon the person in control of a vehicle to station guards for the purpose of preventing pedestrians from coming in contact with the rear part of the conveyance. As was said by Barker, J., in Gargan v. West End Street Railway, 176 Mass. 106: “ Vehicles are frequently met with in the streets with appurtenances projecting as far from the rear end of the main portion of the vehicle as the fender projected in the present instance. So loads, of iron rods or pipes, lumber, beams, and other like articles often project to much greater distances behind the vehicles upon which they are. It is not unusual to see two or three wagons, one attached behind the other, drawn through the streets by one team. Yet a traveller who walked into such an obstacle to his passage, supposing that, if he avoided collision with the body of the vehicle to which the team was attached, the way would be clear, would collide with an obstacle which was rightfully in place, and could not recover for his injury.”

The argument of the plaintiff as to the perils confronting the traveller on foot must be addressed rather to the Legislature, in whom is the ultimate control of public rights in the highways. Where a particular use of the streets unreasonably endangers travel on foot or by horses in the ordinary manner, the Legislature may be expected to regulate such use. Thus, in this Commonwealth, the operation of motor vehicles is controlled (St. 1909, c. 534), the law of the road provides for the passing of vehicles (R. L. c. 54), the leading of dangerous wild animals is limited (R. L. c. 52, § 16), cities and towns are authorized to make ordinances and by-laws relative to the driving of cattle (R. L. c. 52, § 6), and a recent act (St. 1911, c. 578) requires certain vehicles to carry lights at night.

This is not like the cases arising from the frightening of horses by the transportation of extraordinary objects in the highway, where precautions are necessary in order to enable others with equal rights to travel in the ordinary manner or to pass the object in safety. Joyce v. Exeter, Hampton & Amesbury Street Railway, 190 Mass. 304. Nor do we intimate that under other circumstances one using the street may not be under obligation to take special precaution to avoid endangering the lives or property of others rightfully upon the highway. State v. Kowolski, 96 Iowa, 346. Mullen v. Glens Falls, 11 App. Div. (N. Y.) 275.

In view of our decision that no negligence was shown on the part of those having control of the wagon, it is not necessary to determine whether the plaintiff was a trespasser, nor whether the driver was a servant of the defendant at the time of the accident.

Exceptions overruled.