Callahan v. Boston Elevated Ry. Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: RUGG
• Citation: Callahan v. Boston Elevated Ry. Co., 286 Mass. 223, 190 N.E. 27 (Mass. 1934)
• Decision Date: 07 April 1934
• Parties: CALLAHAN v. BOSTON ELEVATED RY. CO.

286 Mass. 223

190 N.E. 27

CALLAHAN

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

April 7, 1934.

Report from Superior Court, Suffolk County; Broadhurst, Judge.

Action of tort by Denis A. Callahan, administrator, etc., against the Boston Elevated Railway Company. On report after verdicts in favor of the plaintiff in the aggregate sum of $10,200.

Judgment for the plaintiff on the verdicts.

F. J. Monahan, of Boston, for plaintiff.

J. E. Hannigan, of Boston, for defendant.

RUGG, Chief Justice.

This is an action of tort to recover compensation for the conscious suffering and death of the plaintiff's intestate alleged to have been caused by the negligence of the defendant. At the argument in this court the defendant conceded that there was evidence of the negligence of its motorman. The questions to be considered relate to the contributory negligence of the intestate, and the denial of certain requests for rulings.

It was not in dispute that the intestate while a pedestrian was injured by reason of a collision with a car of the defendant; that the accident happened between 6 and 7 o'clock on a January night on Washington Street, Roxbury, beneath the elevated railway structure; that there were no other vehicles in the vicinity; that there was no street crossing or white post near the place of the accident; and that the intestate died the next morning as a result of her injuries. In the street there were outbound and inbound tracks of the defendant, and although there were arc lights in the neighborhood the place was described by some witnesses as quite dark, and some of the stores in the neighborhood were dimly lighted and some not lighted at all. There was testimony tending to show that the intestate left the sidewalk to cross Washington Street; that, when she was about in the center of the street and had crossed two of the four rails, the car of the defendant was fifty or sixty feet, or possibly seventy-five to eighty feet, away from her; that she was then near the third rail; that if she had taken another step she would have crossed the fourth rail and would have been entirely clear of the pathway of the car; that before leaving the sidewalk and when she started to cross the third rail she looked up and down the street; that the car shortly after began to go faster and at the time it hit the intestate was travelling twenty-five miles per hour; that she was struck by the right front of the car and that no gong was sounded; that the car was lighted and the headlight was on; that the car went twenty to twenty-five feet after the brakes were applied; that she was dragged some distance, and when the car stopped she was across the fourth rail and her head and upper body were outside that rail. A declaration of the intestate made after the accident was introduced to the effect that she was going across the street; that she looked up and down the street and saw the car, and saw that it started to slow down so that she thought the motorman had seen her and she had time to get across; that she looked again in the other direction and as she turned back again she saw the car coming fast; that it struck her when she was one foot away from the fourth rail.

There was much evidence tending to show negligence on...