185 Mass. 602 | Mass. | 1904
At the argument the defendant waived the contention made by it in its brief that the evidence did not warrant a finding that it was guilty of negligence, and insisted only that there was no evidence of due care on the part of the plaintiffs and that the presiding judge should not have let the jury find that Sullivan’s attack of appendicitis was caused by the collision.
Sullivan testified that “Just as I was swinging out I looked behind me, and I didn’t see anything behind me, so I went right along and the first thing I knew I was going toward this post.” He further testified that “ From the time he swung into the track until the car struck his wagon the horses went about forty feet and were walking right along, straight ahead, the way the track runs.” The nigh wheels were between the rails of the right hand track and the off wheels about a foot and a half outside the right rail of that track. On cross-examination he testified that he turned on to the track about thirty feet from the post, and that when the car struck his team his forward wheel was about five feet from the post. It was admitted that from the noses of his horses to the tailboard of his wagon was thirty feet.
There was' evidence that the gong was not sounded. It did not appear from the plaintiffs’ witnesses how far off the car was
The defendant’s argument is that if Sullivan had looked as he said he did he would have seen the car. The plaintiffs’ argument is that the car was so far behind the wagon when Sullivan drove on to the tracks that it was not then in sight. When it is said that it was not then in sight it is not meant that it could not have been seen by a person facing north in place of south, the direction in which Sullivan was driving, but that it was not in the sight of a person driving south who looks over his shoulder to ascertain whether he has an opportunity to drive upon the track, so far as a car coming up behind him is concerned. So far as a car coming up behind him was concerned, Sullivan was bound to look and see that he had an opportunity to get upon the track. When on the track he had a right to drive by the post, and it was not his duty to turn off the track until he was by the post and became aware of the approach of the car from behind. See in this connection Vincent v. Norton & Taunton Street Railway, 180 Mass. 104; Le Blanc v. Lowell, Lawrence & Haverhill Street Railway, 170 Mass. 564. See also Robbins v. Springfield Street Railway, 165 Mass. 30.
It was for the jury to decide whether Sullivan turned in upon the track when the car was so near to him that a collision could not be avoided by the exercise of due care on the part of the
We are therefore of opinion that there was evidence of due care on the part of Sullivan, and that the presiding judge was right in submitting the case to the jury.
We are also of opinion that he was right in letting the jury find a verdict in favor of Knox. Knox testified that “he did not interfere at all with the driving, but trusted himself entirely to Sullivan.”
It was laid down in Allyn v. Boston & Albany Railroad, 105 Mass. 77, 79, that “if the plaintiff failed to use the care which prudence required, relying upon the vigilance of his companion, he must prove that Haskell was in the exercise of due care, not only in the management of his horse, but in using the necessary precautions to guard against danger from passing trains.” Under this rule, the plaintiff Knox had a right to go to the jury on the question whether Sullivan exercised due care. See also in this connection Randolph v. O'Riordon, 155 Mass. 331; Murray v. Boston Ice Co. 180 Mass. 165.
Dr. Bottomley’s testimony warranted the jury in finding that the inflammation of the appendix was caused by the collision. He properly was found qualified to testify as an expert, and testified “ that such a fall as Sullivan testified to receiving could be an adequate cause of the appendicitis.” That was sufficient, taken in connection with the plaintiff’s testimony that his health was good before the accident. See in this connection McGarrahan v. New York, New Raven, & Hartford Railroad, 171 Mass. 211; Houston v. Traphagen, 18 Vroom, 23.
Bxceptions overruled.