Beale v. Old Colony St. Ry. Co.

• Decision Date: 20 June 1907
• Citation: 81 N.E. 867,196 Mass. 119
• Parties: BEALE v. OLD COLONY ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 119

81 N.E. 867

BEALE v. OLD COLONY ST. RY. CO.

Supreme Judicial Court of Massachusetts, Norfolk.

June 20, 1907

COUNSEL

J. W. McAnarney, for plaintiff.

Reginald Foster, William D. Turner, and George Hoague, for defendant.

OPINION

RUGG J.

This is an action of tort to recover for the death of the plaintiff's intestate, Earl R. Beale. It is unnecessary to determine whether it is brought under Rev. Laws, c. 171, § 2, or under Rev. Laws, c. 111, § 267. The plaintiff's intestate, on August 27, 1904, was a child seven years and six weeks old, above the average intelligence, and was struck and killed by a car of the defendant on Washington street in Quincy. The tracks of the defendant at the place of the death were on the westerly side of the street and the westerly rail thereof was distant from the nearest edge of the sidewalk about 2 or 3 feet. There was a single track in this portion of the street and the car was proceeding from the direction of Weymouth, northerly toward Boston. Some distance south of where the accident occurred, Foster street joins Washington street on its westerly side, and near the place of the accident a street, called Maple Place, also enters Washington street on its westerly side. On the northwesterly corner of Maple Place and Washington street there was a vacantlot, from which a house had been moved, and there was a house on the adjacent lot northerly bounding on Washington street. The Public Library was nearly opposite the place of the accident. There was evidence tending to show that at the time of the accident there was a high board fence and tall lilac bushes at the junction of Foster and Washington streets, and that extending northerly toward the place of the accident, on land on the westerly side of the street next to the track, there were other bushes and shrubs 10 feet high and, leaning out over the sidewalk. These extended part way to the place of the accident and from there on to the place of the accident there was a growth of maple trees 30 feet apart, extending along the westerly side of Washington street close to the edge of the sidewalk; that the cars of the defendant usually moved slowly over that portion of Washington street lying between Foster street and the place of the accident and at the corner of Foster and Washington streets there was a stop signal that it would be next to impossible for a person entering Washington street from Maple Place to see a car approaching from the south on account of the trees along that side of the street, an old board fence and a hedge; that the child was familiar with the manner in which the cars were operated along this portion of Washington street, and that this portion of the street was a residential section with dwelling houses on both sides. There was evidence from a passenger riding on the front seat of the car of the defendant, which caused the death, that 'a short distance south of the junction of Washington and Foster streets there is a steep grade and the car * * * when near the junction of Washington and Foster streets * * * was going at a very high rate of speed, * * * almost its full speed. * * * A little after the car passed Foster street, which is 200 yards from where the boy was struck, and was going toward Maple Place, * * * it passed two women who were walking on the westerly side of Washington street, and the one who was nearest the car nodded and bowed to the motorman. He nodded, bowed and smiled in return. She then held up a pear in her hand and waved it to him. He laughed, nodded and gesticulated again, then he looked in front of the car, saw that the road was clear, and the witness saw that the road was clear for at least 240 feet, before the accident. The motorman put his power on at full speed, and, turning around continued the same maneuvering with the woman as before, so far as his arms would allow him to reach, turning his left side toward the sidewalk and passing his body in front of the witness so as to obscure the witness' view. When he threw his power on, there was a tip-cart crossing the tracks. It came from the westerly side right across the street. While he was in that position, suddenly some noise on his right drew the motorman's attention back to the car and the moment he got back to his proper position the witness saw clearly in front of the car, some 12 or 15 feet away, a tip-cart crossing the street and passing directly over the rails, and a little boy stepping behind it. The car was so closely upon it that the tip-cart barely escaped being struck by the car. The boy seemed to hesitate a moment and then suddenly went out of sight. The boy came out from the vacant lot on the westerly sidewalk. The boy was stepping behind the cart and he did not seem to realize. He was caught in a trap and was not big enough to jump upon the cart. When he was struck, he was near to the easterly rail. * * * Another good step and he would have cleared the track. He must have been within 8 or 10 inches from the rail, because the tip-cart cleared it. There was no ringing of the gong or any exclamation of warning from the motorman to the boy. The speed of the car had not slackened any when it struck the boy. The motorman could not get the car stopped for 180 feet after he struck the boy. * * * The motorman must have been nearly half a minute bending over looking at the woman while his body was in front. * * * The car was about 30 feet long.' Another passenger testified that the motorman, after seeing the women, 'smiled and barely checked up the speed of the car, then looked ahead and there was a clear track. He threw his controllor handle clear around and leaned over to the left in front of the witness. * * * He continued in that position quite a period, then some outcry, * * * because he suddenly came back into place, and as he did so witness got a clear view of the track, and about 15 or 20 feet ahead on the right, close by the rail, he saw the boy. The motorman immediately threw off his...