O'brien v. Lexington & N. St. Ry. Co.
| Decision Date | 25 February 1910 |
| Citation | 91 N.E. 204,205 Mass. 182 |
| Parties | O'BRIEN v. LEXINGTON & N. ST. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James T. Connolly, for plaintiff.
Pitt F Drew, for defendant.
If, in the absence of any statement in the bill of exceptions, we assume that the plaintiff obtained a verdict, the question for decision is whether, upon the evidence introduced by him the trial court could have ruled, as requested by the defendant, that as matter of law the action could not be maintained. The plaintiff's servant, who was driving a heavily loaded team, and the defendant's motorman in charge of its coal car were lawfully using the street in common, and it was the motorman's duty to pay reasonable attention to the presence of travelers, and to avoid collisions. O'Brien v. Blue Hill Street Railway Co., 186 Mass. 446, 71 N.E. 951; Stubbs v. Boston & Northern St. Ry. Co., 193 Mass. 513, 79 N.E. 795; Fallon v. Boston Elevated St. Ry., 201 Mass. 179 182, 87 N.E. 480; Wright v. Boston & Northern Street Ry Co., 203 Mass. 569, 89 N.E. 1073. The team had reached a point in the line of travel, where it began to turn diagonally to pass over the track into the driveway, leading from the street to the plaintiff's farm. In their description of what followed, the witnesses are substantially in accord. The jury from the evidence would have been warranted in finding that the driver looked as he turned and saw the car, which was then near the top of the hill about 400 or 500 feet distant, moving on a downgrade, with the view unobstructed. It was evident he must choose one of two alternatives, either to turn back, if that were possible, and wait for the car to pass, or to go forward. While confronted by this situation he well might assume that the motorman, who could be found to have seen the movements of the team, would slacken speed, instead of apparently keeping on without making the slightest effort to check it. The exceptions further recite that, as the driver saw the car coming, he not only continued to look, but nodded his head to the motorman. This conduct could be interpreted by the jury as meaning that having miscalculated the distance, or failing to realize the speed of approach, upon perceiving his imminent peril he hoped the motorman by an application of the brakes could avert the collision, or lessen its force. If in connection with the presumption that the motorman would not act carelessly, the driver also assumed the team safely could cross, it was for the jury to determine whether in making an error of judgment, as the event proved, he acted differently from the average man called upon to face similar conditions, and to decide at once what course should be pursued. Kerrigan v. West End Street Railway Co., 158 Mass. 305, 33 N.E. 523; Hennessey v. Taylor, 189 Mass. 583, 585, 76 N.E. 224, 3 L. R. A. (N. S.) 345; Jeddrey v. Boston & Northern Street Ry. Co., 198 Mass. 232, 235, 84 N.E. 316. Travelers on foot, or by carriage, are required only to exercise ordinary care when using the public ways to avoid defects therein, or collisions with passing vehicles. Hennessey v. Taylor, 189 Mass. 583, 76 N.E. 224, 3 L. R. A. (N. S.) 345; Wakefield v. Boston Coal Co., 197 Mass. 527, 530, 83 N.E. 1116. And it often has been pointed out that street cars, while they must run on tracks provided for them, have no exclusive right of way which puts upon other travelers the burden of constantly looking and listening for their approach, or if, failing to do so, they are injured, their conduct invariably will be held to preclude recovery. Wright v. Boston & Northern Street...
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