283 Mass. 41 | Mass. | 1933
The intestates were struck by an electric street car and were killed. They were standing about a foot to the north of the street railway track laid in a reservation at a point where a paved crossing, constructed by public authority as a duly established break for highway purposes, extended across the reservation. They were struck by the right hand corner of the car which overhung the rails on which the car rested. To any one standing where they were the approaching car had been in sight for more than a thousand feet. It was lighted. It was moving at from thirty to thirty-five miles per hour. It was making the usual noises which attend moving street cars. These noises were heard by all the witnesses before the car struck the intestates. No bell, gong or whistle signal was sounded as it drew near; and no application of brakes was made before the impact. There was a white pole stopping place just before the break in the reservation.
The defendant rested at the close of the plaintiffs’ case. The judge directed verdicts for the defendant. The plaintiffs except. They contend that there was sufficient evidence both of negligence of the motorman and of the due care of the intestates to require submission to the jury.
Certain facts are indisputable. The intestates had crossed the car tracks on a part of the reservation where they had the rights of travellers upon a highway. At that point the defendant had no exclusive right of way, or right paramount to that of the intestates to pass over the reservation. Welch v. Boston Elevated Railway, 214 Mass. 168. Minihan v. Boston Elevated Railway, 260 Mass. 490. See also Hammond v. Boston Elevated Railway, 222 Mass. 270. A single step would have taken each of them beyond the overhang of the car. They had plenty of time to take that step after the little girl left them. They were not struck until she had reached the further sidewalk. Upon the evidence the only explanation for their failure to reach a
This case more nearly resembles Austin v. Eastern Massachusetts Street Railway, 269 Mass. 420, where we held it for a jury to determine whether one was using due care who unexpectedly was forced by passing automobiles to pause as he was passing in front of a street car; and the somewhat similar case of McBride v. Middlesex & Boston Street
On the issue of the motorman’s negligence it was for the jury to say whether a speed so great, or a disregard of conditions at this crossing so complete, that the car was not stopped before it had gone nearly five hundred feet, did not indicate failure to have his car in proper control. Although he could see that the intestates had crossed the track and presumably would be in a place of safety before his car reached them, jurors might justifiably find that proper attention to his rails and to what was within dangerous distance of them, would have shown them still in danger and have led to gong or whistle signals that might have warned the intestates in time to save their lives. See Gould v. Boston & Maine Railroad, 276 Mass. 114. Although in view of other warnings the intestates might not have been in position to set up lack of gong or whistle signal as grounds of negligent conduct entitling them to recovery, the failure to give them might be significant on the question whether the motorman was using proper care in handling his car.
Exceptions sustained.