O'brien v. Blue Hill St. Ry. Co.

• Decision Date: 17 October 1904
• Citation: 71 N.E. 951,186 Mass. 446
• Parties: O'BRIEN v. BLUE HILL ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 446

71 N.E. 951

O'BRIEN v. BLUE HILL ST. RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

October 17, 1904

COUNSEL

Jas. A.

McGeough, for plaintiff.

T. E Grover and F. J. Squires, for defendant.

OPINION

BRALEY J.

Though the evidence was conflicting, it appeared from the plaintiff's statement that while he was driving along Washington street, a public way in the town of Canton, it became necessary for him, in order to safely pass another traveler by carriage, to turn from the middle of the street to the right, and drive directly onto the tracks of the defendant's road, located on the easterly side of the way, and as he continued his course and came to a turn in the road he was warned by the vibration of the trolley wire that a car was approaching, and immediately turned to the left, in order to leave the track; but the wheels of his wagon clung to the flange of the rails, and slipped for a short distance and he then saw for the first time that a car was approaching and 'rounded the bend just as I was swinging off the track. I should think the car was about one hundred and fifty or two hundred feet away from me when I first saw it. They came around the bend and were right on top of me almost in a minute. He rang his bell, and next thing I knew my horse got frightened, and I couldn't control her. I could not say how fast the car was going, it came on me so sudden. The man at the brake made a sort of an attempt to stop. I don't know whether he got bewildered, or what happened, but he slipped I should say fifty to seventy-five feet beyond where the accident happened before he came to a full stop.' After the gong rang and the car approached nearer, the horse which previously had been under control, became frightened, then unmanageable, and finally plunged in front of, and just escaped contact with, the car, ran across the street, and came into collision with a telephone pole, the plaintiff was thrown to the ground and hurt, his horse injured, while his wagon was demolished.

If the plaintiff, as a traveler, was found to have obeyed the law of the road in turning to his right to permit another conveyance to pass, then he was in the lawful use of that portion of the street occupied by the tracks of the defendant; and, while neither of the parties had an exclusive use of the highway, each was required to observe a due regard for the rights of the other, and their respective privileges arising from such a concurrent use have been so fully defined by our decisions that no further discussion is now required in the consideration of this case. Com. v. Temple, 14 Gray, 69; Galbraith v. West End Street Railway Co., 165 Mass. 572, 43 N.E. 501; White v. Worcester Consolidated Street Railway Co., 167 Mass. 43, 44 N.E. 1052; Scannell v. Boston Elevated Railway Co., 176 Mass. 170, 57 N.E. 341. As the defendant does not claim that the plaintiff's conduct was careless, but confines its argument to the single proposition that the testimony wholly fails...