De Angelis v. Boston Elevated Ry. Co.

• Decision Date: 29 November 1939
• Citation: 304 Mass. 461,23 N.E.2d 859
• Parties: HENRY C. DeANGELIS, administrator, v. BOSTON ELEVATED RAILWAY COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 461

23 N.E.2d 859

HENRY C. DeANGELIS, administrator, v. BOSTON ELEVATED RAILWAY COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

November 29, 1939

November 8, 1939.

Present: FIELD, C.

J., DONAHUE LUMMUS, DOLAN, & RONAN, JJ.

Negligence Contributory; Street railway: pedestrian.

Evidence merely that a pedestrian at night stepped off the curbing of a street when a street car was in sight approaching some distance away on the farther set of double tracks in the middle of the street, and was struck by the car, moving rapidly, as he stepped onto the second rail of that set of tracks, did not require a ruling that he was guilty of contributory negligence.

Negligence of the motorman of a street car could have been found on evidence that, operating at excessive speed at night, he took no steps until too late to avoid striking a pedestrian whom he had failed seasonably to observe crossing the tracks in plain sight.

TORT.Writ in the Superior Court dated July 22, 1935.The action was tried before Greenhalge, J.

J. F. Dunn, for the plaintiff.

C. A. McCarron & J.

F. Dolan, for the defendant, submitted a brief.

RONAN, J.The decedent was struck and killed by a car of the defendant, at about one o'clock on a fair and clear summer morning in 1935, as he was crossing from the north to the south side of Bennington Street in East Boston.Bennington Street runs east and west and is thirty-four feet wide between the curbs.A double set of tracks is located in the center of the street.The judge, subject to an exception, directed a verdict for the defendant.

Considering the evidence, as we must, in the light most favorable to the plaintiff, there was testimony which would warrant a jury in finding the following facts.The decedent with two companions left a tavern located upon the northerly side of Bennington Street.After reaching the sidewalk they delayed no longer than to bid goodnight to each other.The decedent went out into the street, crossed the first set of tracks, and was struck, as he stepped upon the last or most southerly rail of the second set of tracks by a car travelling easterly at the rate of thirty miles an hour.The car stopped in about eighty feet.The place of the accident was in front of the tavern which the decedent had left, and was a little over twenty-four feet away from the curbing in front of this tavern.The street was straight for a considerable distance to the west, the direction from which the electric car came.There was no traffic other than the car in the vicinity of the scene of the accident.

The plaintiff was not bound by any evidence introduced by the defendant in reference to the movement and conduct of the decedent from the time he left the tavern until he was struck by the car.The jury could find that he crossed the street to go to his home on Havre Street, and that when he was struck he was only about eight feet from the corner of Bennington and Havre streets.The last stop of the electric car before the accident was at the corner of Bennington and Marion streets which was about four hundred feet from the place of the accident.The car was in plain sight when the decedent left the tavern, and its location and speed at that time were for the jury.It was within the province of the jury to find that there was no credible evidence of the action of the decedent from the time he was seen, by two of the plaintiff's witnesses, at a point in the street three or four feet from the curb in...