Winslow v. Boston Elevated Railway Co.

264 Mass. 15 | Mass. | 1928

Braley, J.

This is an action of tort brought by the plaintiff to recover damages for the conscious suffering and death of his intestate who was nearly eight years of age. The accident happened at the Fellsway and Second Street in the city of Medford shortly after five o’clock in the afternoon of April 17, 1924, where the intestate was struck by a car of the defendant. The jury having returned a verdict for the plaintiff on each count, the case is here on the report by the trial judge. It is contended by the defendant that its motion for a directed verdict should have been granted because the intestate did not exercise due care and there was no evidence of the defendant’s negligence.

The jury warrantably could find that the intestate, whose home was on the Fellsway at the second house from the corner of Second Street, having obtained permission from his mother to accompany one Richard John Collins, about thirteen years old, engaged in selling newspapers, went with Collins at about five o’clock in the afternoon of April 17, 1924, from Second Street to pass to the opposite side of the Fellsway to Sidney Street. The intestate looked to his left when he started on Second Street, and with Richard then walked slowly towards the car tracks, using the street at a place “ commonly used for people to travel across the tracks.” The intestate, also, as the jury could say, well might assume that his mother, who was familiar with the location of the tracks and of the crossing, would not have given her permission for him to go across with Richard unless she thought that he could do so safely. The distance passed over before the tracks were reached was about fifty-four feet, and the view toward Boston on the outbound track on the intestate’s left was unobstructed for several hundred feet. The intestate with his companion approached the track, when, as Richard testified, he suddenly looked and saw “there was a car right on top of us and I jumped back,” and tried to save Henry who was on his right, but failed in the attempt and the intestate was struck by the car and thrown under the right front wheel or front truck. The jury were to determine whether the intestate, having looked before he began to cross, should have again looked as he approached the tracks and whether if he had looked he would not have been injured. McDermott v. Boston Elevated Railway, 184 Mass. 126. Robbins v. Springfield Street Railway, 165 Mass. 30. Hennessey v. Taylor, 189 Mass. 583, 585, 586. McGrath v. Boston Elevated Railway, 257 Mass. 541, 544.

It could be found by the jury that the car was moving at a speed from fifteen to twenty miles an hour, and that the motorman, using reasonablé diligence, could have seen the intestate before he was within three feet of him walking across and had reached the center of the crossing. The rules of the street railway company for the operation of cars also required the gong tobe sounded at all points where vehicles or persons are crossing, or approaching, and there was evidence introduced by the plaintiff of the failure of the motorman to comply with the rule. The question of the defendant’s negligence also was for the jury. Burns v. Worcester Consolidated Street Railway, 193 Mass. 63. Chadbourne v. Springfield Street Railway, 199 Mass. 574, 578.

In accordance with the terms of the report, judgment is to be entered on the verdict for conscious- suffering in the sum of $1,000 and on the verdict for death in the sum of $5,500.

So ordered.