Barnes v. Berkshire St. Ry. Co.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtLUMMUS
Citation281 Mass. 47,183 N.E. 416
Decision Date07 November 1932

281 Mass. 47
183 N.E. 416


Supreme Judicial Court of Massachusetts, Berkshire.

Nov. 7, 1932.

Exceptions from Superior Court, Berkshire County; W. A. Burns, Judge.

Action by Louis D. Barnes against the Berkshire Street Railway Company with trustee process. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled.

[281 Mass. 48]J. M. Rosenthal, of Pittsfield, for plaintiff.

W. A. Heaphy, of Pittsfield, for defendant.


This is an action of tort for negligence causing bodily injury, in which the plaintiff obtained a verdict. The first exception of the defendant is to the denial of a motion for a directed verdict. The evidence warranted a finding of the following facts. On the evening of September 29, 1929, the plaintiff, a man of sixty-one years, had been visiting an old friend, Mrs. Rondeau, the mother of a young man named Halloween Reynolds. Mrs. Rondeau lived on the northerly side of Peck's Road in Pittsfield, at the corner of Student's Lane. Along the northerly side of Peck's Road ran the track of the defendant, a street railway corporation. About half past ten, when it was quite dark, Reynolds drove an automobile owned by his mother from her premises towards the track, intending to back it up to the porch of her house and thence to take the plaintiff home. The automobile stalled when its front was

[183 N.E. 417]

upon or close to the northerly rail. The automobile had bright headlights, which were lighted, and there was an electric light at the corner of the two streets. The operator of a street car approaching from the west would have a view of the automobile for more than two hundred feet. The plaintiff, knowing that street cars were running on the track and that if a street car should come there would be danger of collision, stepped from the house, after looking to make sure that no street car was coming, to a point about half way along the right or west side of the automobile and several feet northerly from the northerly rail. There he tried to push the automobile from the tracks. In the meantime, Reynolds remained in the automobile, trying to start the engine and making considerable noise in the process. Reynolds and the plaintiff remained at work together in this way for a time which the plaintiff in various [281 Mass. 49]parts of his testimony estimated at ‘four or five seconds, or ten seconds' and at ‘a minute and it might be a little over a minute,’ trying unsuccessfully to move the automobile, until a street car of the defendant came from the west and hit the automobile at the front of its right side, swinging it around, moving it nine feet, and knocking the plaintiff into the left side of the street car. Neither Reynolds nor the plaintiff saw or heard the street car in season to escape.

The first ground upon which the defendant rests its motion is that there was no sufficient evidence of negligence on the part of its motorman. This was not stressed by counsel in argument, and requires little discussion. The evidence already stated, and further evidence that no going was sounded until too late to be of use, that the street car slid with locked wheels about eighty feet without slowing up before the collision, and that, according to some witnesses, the street car was going on a normal rail, not slippery, only twelve miles an hour, while according to others it was going so fast on a slippery rail that it was swaying, make the case manifestly one for the jury on the issue of the defendant's negligence.

[4] The second ground is that the evidence required a ruling that the plaintiff was guilty of contributory negligence, notwithstanding G. L. (Ter. Ed.) c. 231, § 85. The plaintiff had a right to place some reliance upon the probability of care on the part of the operator of any street car that might come. When the plaintiff took his position in the attempt to move the automobile, its situation was fraught with possible peril to the automobile, to Reynolds and to the motorman and passengers in any such street car. The man of ordinary prudence, by whose supposed conduct under similar circumstances the care of litigants is measured (Labrecque v. Donham, 236 Mass. 10, 127 N. E. 537), is not devoid of human instincts and emotions, numb to the promptings of friendship and humanity, and anxious only for the safety of his person at all costs. On the contrary, great risks taken to save persons in dire peril have been held consistent with due care. Dixon v. New York, New Haven & Hartford Railroad, 207 Mass. 126, 92 N. E. 1030,[281 Mass. 50]Wagner v. International Railway, 232 N. Y. 176, 133 N. E. 437, 19 A. L. R. 1, and note. Lesser risks may be justified by lesser occasions. There is no absolute safety in life, and the most ordinary acts involve possible danger. One is not negligent unless he takes greater risks than a man of ordinary prudence would take in a like situation. Mere knowledge that some danger exists is not conclusive of the negligence of one who fails to avoid it. McGuinness v. Worcester, 160 Mass. 272, 35 N. E. 1068;Thompson v. Bolton, 197 Mass. 311, 83 N. E. 1089;McCarthy v. Morse, 197 Mass. 332, 83 N. E. 1109;Naze v. Hudson, 250 Mass. 368, 145 N. E. 468;Mitchell v. Springfield, 261 Mass. 188, 158 N. E. 658;Slack v. Boston, 275 Mass. 187, 175 N. E. 504. The degree of risk taken by the plaintiff does not require a ruling that he was negligent, in view of the exigency of the situation. Lemay v. Springfield Street Railway, 210 Mass. 63, 67, 96 N. E. 79,37 L. R. A. (N. S.) 43;Burns v. Oliver Whyte Co., Inc., 231 Mass. 519, 121 N. E. 401;Fitch v. Bay State Street Railway, 237 Mass. 65, 129 N. E. 423, 15 A. L. R. 234;Pierce v. Hutchinson, 241 Mass. 557, 564, 136 N. E. 261. The case of Renwick v. Eastern Massachusetts Street Railway, 275 Mass. 145, 175 N. E. 475, and cases cited therein, are distinguishable on the facts.

The remaining exceptions are to the refusal to instruct the jury that if they should find certain of the facts of which there was evidence, bearing on the care of the plaintiff, he could not recover because of his contributory negligence. In pure theory, a request for an instruction that specified subsidiary facts do or do not warrant or require a particular conclusion, such as negligence, may be thought to raise a possibly material question of law, as well where the facts set forth conditionally in the request may be found by the jury to be all the facts material to the conclusion, as where the request is based...

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