Austin v. Eastern Massachusetts St. Ry. Co.

Decision Date31 December 1929
Citation169 N.E. 484,269 Mass. 420
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Exceptions from Superior Court, Essex County; Stanley E. Qua, Judge.

Action by Albert H. Austin against the Eastern Massachusetts Street Railway Company. Verdict for plaintiff. On defendant's exceptions. Exceptions overruled.J. J. Donahue, of Boston, for plaintiff.

I. W. Sargent, of Lawrence, for defendant.


This is an action of tort to recover for personal injuries and property damage alleged to have resulted from a collision between an automobile owned and operated by the plaintiff and one of the defendant's trolley cars. It was tried by a judge and a jury. There was a verdict for the plaintiff. The case is here on the defendant's exceptions to the refusal of the judge to direct a verdict for the defendant and to strike out certain testimony.

[1] 1. It was not error to refuse to direct a verdict for the defendant.

The following facts were not in dispute: The collision occurred in the evening when the plaintiff was driving his automobile south on a street running north from Haverhill. The traveled part of the way at and for a long distance each side of the place of collision was twenty feet wide, built of cement and level. The defendant's single track was laid within the limits of the way on the westerly side of the traveled part thereof. Between the westerly edge of the cement and the easterly rail of the defendant's track was a strip of gravel four feet wide. The space between the rails was four feet eight and one half inches wide filled with gravel and reasonably smooth, and the rails did not stand appreciably above the level of the gravel. The weather was fair and lights were necessary on all vehicles.

The evidence as to the way in which the collision took place was conflicting. However, there was testimony which, if believed, warranted the jury in finding that the defendant was negligent. The plaintiff testified that traffic was heavy in both directions, that he saw two automobiles abreast with ‘very bright’ lights coming toward him ‘very fast,’ that ‘when the headlights came in his sight they were about one hundred fifty to two hundred yards or so away from him,’ and that he ‘pulled to the right side of the road and stopped, probably within a foot or so of the defendant's track, with the right wheels of his automobile on the gravel and the left wheels of it on the cement and the wheels of it parallel with the track.’ After he first saw the lights of the two approaching automobiles he traveled maybe fifty feet or so before stopping’ and ‘when he came to a full stop the two automobiles were somewhere around between thirty and fifty feet ahead of him.’ He ‘pulled up in order to make room for the oncoming autos,’ but when they actually reached him one already had passed the other and was on its own side of the road, so that one half of the cement road was free for his use. After the two automobiles passed the plaintiff he ‘looked back to allow the automobiles coming his way to get by him so that he could get in line.’ He ‘could not turn into the road immediately without being hit by something from the rear.’While he was waiting for his turn to get into line ‘at least two or three automobiles came by him, probably fairly close together, close enough so that he wouldn't try to get in between them * * * they were travelling at an ordinary speed, about thirty miles an hour.’ When he turned around to start his automobile the trolley car was upon him. Its right front part struck the right front part of the plaintiff's automobile. Before the collision his lights were lighted. When the plaintiff ‘first saw the trolley car it was back of the two automobiles and was coming toward him, probably twenty-five yards or so back of the automobiles, and at that moment the automobiles were 200 yards away from him.’ When he came to a stop the trolley car was a hundred yards or so away.’ At no time ‘after he turned in and came to a stop, and prior to the accident, was there anything on the car tracks between his automobile and the electric car that obscured the view.’ On this evidence and the undisputed facts the jury could have found that under the circumstances of the case in the exigencies of travel the duty or necessity of turning out for other vehicles might bring and keep for some time an automobile dangerously near to the track; that the defendant's motorman either saw, or, in the exercise of proper diligence, ought to have seen at a distance of from one hundred to two hundred and twenty-five yards, that the plaintiff's automobile was outside the stream of traffic and near the track, and, at a distance of one hundred yards, that it was stopped near the track; and that due care required the motorman to reduce the speed of the trolley car so that when he saw, or ought to have seen, that the automobile was not being turned back into the stream of traffic he could have stopped the trolley car. On the question of the negligence of the defendant the case is not distinguishable from Lawrence v. Fitchburg & Leominster...

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31 cases
  • Hausken v. Coman
    • United States
    • North Dakota Supreme Court
    • 16 Julio 1936
    ...of Automobile Law (Permanent Edition) § 6051, p. 324; Hughes v. Torregrossa, 278 Mass. 530, 180 N.E. 304;Austin v. Eastern Massachusetts St. Ry. Co., 269 Mass. 420, 169 N.E. 484;Booth v. Frankenstein, 209 Wis. 362, 245 N.W. 191. The presumption does not obtain where the facts surrounding th......
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    ... ... p. 1067, citing California, Connecticut, Iowa, Kentucky, ... Maine, Massachusetts, Michigan, Minnesota, Missouri, ... [268 N.W. 442] ... North Carolina, Ohio, Oklahoma, Oregon, ... Ed.) ... § 6051, p. 324; Hughes v. Torregrossa, 278 ... Mass. 530, 180 N.E. 304; Austin v. Eastern Massachusetts ... Street R. Co. 269 Mass. 420, 169 N.E. 484; Booth v ... ...
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