Wright v. Concord, Maynard & Hudson Street Railway Co.

235 Mass. 456 | Mass. | 1920

Carroll, J.

The plaintiff’s automobile was damaged by a collision with one of the defendant’s cars near the junction of Main Street and Sudbury Road, Concord, The defendant’s tracks are in the middle of Main Street; at the intersection of the two streets they leave Main Street and run to the side of Sudbury Road, which branches off from Main Street at an acute angle. On a dark night in August, 1913, the plaintiff’s chauffeur was driving an automobile along the right hand side of Main Street. He testified that as he approached the intersection of the two ways he saw a small light which he thought was a “truck light” on a vehicle moving toward him on Main Street. He knew of the intersection of the two streets and that the street cars ran on Main Street and in and out of Concord Square, but had no knowledge that the tracks turned into Sudbury Road at that point. As the automobile drew near the car track the street car entered the curve, the direction of the headlight varied a little and, as the chauffeur was crossing the track, the searchlight of the car was turned on, as he testified, blinding him so that he. could not see. He at once threw on his brakes and brought the automobile to a standstill, when it was struck and damaged by the defendant’s street car.

There was evidence that the driver of the automobile was in the exercise of due care. The jury could find that he was on the right hand side of the street, supposed the vehicle he saw approaching him on Main Street was a truck, and had no knowledge that it was a street car until the searchlight was turned on almost at the instant the collision occurred. There was evidence of the darkness, that the front and rear lights of the automobile were lighted, that the automobile was moving at a moderate rate of speed, and that some of the curtains behind the motorman were drawn. Halloran v. Worcester Consolidated Street Railway, 192 Mass. 104, 105. Eustis v. Boston Elevated Railway, 206 Mass. 143. Doherty v. Boston & Northern Street Railway, 207 Mass. 27, 29.

The motorman saw the plaintiff’s automobile at least one hundred feet away from him. There was evidence that no warning of the approach of the street car was given and that its speed was not diminished as it rounded the curve. The jury could find that the motorman should have known that the automobile was moving toward the track; that some warning should have been given and the car placed under proper control; that in the exercise of proper care the defendant could, if necessary, have stopped the car and prevented the collision. Fallon v. Boston Elevated Railway, 201 Mass. 179, 181. Lawrence v. Fitchburg & Leominster Street Railway, 201 Mass. 489, 492. Horsman v. Brockton & Plymouth Street Railway, 205 Mass. 519, 521.

There was sufficient evidence, therefore, of the defendant’s negligence and of the plaintiff’s due care, and we assume, without deciding, that the allegations of the plaintiff’s declaration were sufficient to permit his recovery.

But in one respect there was error. The judge instructed the jury that, while there was no negligence in having the high power searchlight on the car, they might consider the conduct of the motorman in turning on this light at such a time and in such a way as to dazzle the chauffeur, and left it to them to determine whether the motorman was in fact negligent in turning on the searchlight at the time when the collision was imminent. This instruction was excepted to by the defendant. The evidence showed that, as the plaintiff’s automobile entered the track, the searchlight was turned on and at that instant the car struck the automobile. When the searchlight was turned in the face of the chauffeur he then was on the track and it does not appear that at this time it was possible to have avoided the collision. There was no evidence to support the contention that the turning on of the searchlight was the cause of the collision, and, as the instruction, that the motorman could have been found to have been negligent if he turned on this light at the time, was erroneous and harmful to the defendant, the exceptions must be sustained.

So ordered.