Carrahan v. Boston & N. St. Ry. Co.

• Decision Date: 20 May 1908
• Citation: 85 N.E. 162,198 Mass. 549
• Parties: CARRAHAN v. BOSTON & N. ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

198 Mass. 549

85 N.E. 162

CARRAHAN v. BOSTON & N. ST. RY. CO.

Supreme Judicial Court of Massachusetts, Essex.

May 20, 1908

The following is a copy of the plat referred to in opinion:

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COUNSEL

Walter H. Southwick, for plaintiff.

Starr Parsons and H. Ashley Bowen, for defendant.

OPINION

LORING, J.

The story told by the plaintiff in this case is that on the afternoon of July 21, 1903, he was driving a heavily loaded one-horse express wagon through South Common street in Lynn (shown on the accompanying plan), on his way from Boston to Nahant. The afternoon was a stormy one, with a pelting driving, easterly rain full in his face. He had a canvass over his wagon, drawn up over a hood or shade which was over his seat. When he got to the end of the Common he looked to see if there was a car coming. He saw none, and drove to the drinking fountain to give his horse a drink. He then testified 'I looked around again and I could see down below the trees, there is trees at the end of the Common probably 200 or 300 feet away from where I was. I should say 200 feet anyway, and then I proceeded on. I didn't see any car, so I started across in a direct line right across Market Street and about 100 feet, 140 feet from the drinking fountain I struck the car track and I goes in the car track for about 15 feet, 10 or 15 feet, and when I was in there at that distance I heard the car coming from behind, so I tried to get the horse to go faster; I was going very slow.' He tried to get out of the way, but before he succeeded in doing so the car 'struck the hind wheel and threw the hind part of the wagon out and directly after that struck the forward wheel and threw that out, and about the same time it struck the horse and threw the horse down and it threw me in the back of the wagon.'

It is admitted that 'the plaintiff walked his horse from the drinking fountain till he got upon the car track and did not look back or listen after he left the drinking fountain.'

Evidence was introduced by the defendant tending to show that the plaintiff was asleep; that the gong was sounded and he paid no attention to it, and that the car struck 'in between the horse and the shaft near the hind part of the horse'; and that the plaintiff was not thrown off his seat. Some of the evidence introduced by the defendant corroborated that of the plaintiff as to the way he drove on to the car track, while other witnesses testified that the plaintiff 'was driving a little ways parallel with the track and then swung across when the car was within 12 feet of him.'

The motorman of the car in question testified that 'at City Hall Square there was a covered team going in the same direction on an angle towards the track. When I first noticed the team I was about 30 yards in the rear. I immediately set my brake and rang my gong. My car was running at about 4 or 5 miles an hour just prior to this time. This team kept coming in towards the track and when I was about 10 feet from him I shouted and rang my going harder, but he kept coming in toward the track and the front left-hand corner hit his right shaft.'

It was also admitted that the plaintiff was thoroughly familiar with the locus and that there were four lines of electric cars running through City Hall Square, and 36 cars an hour went through the square at that time of day, 'averaging less than two minutes apart.'

A civil engineer called by the defendant testified that a motorman in the front end of an electric car coming from Boston as the car in question was coming would have a clear view of the scene of the accident for something like 1,300 feet, probably more.

The defendant asked for a ruling that as matter of law the plaintiff was negligent and the defendant was not. These were refused and exceptions were taken.

In the course of his charge the presiding judge told the jury that: 'Ordinarily, where two men are driving vehicles upon the street, the one who, pursuing his course and not increasing his rate of speed or changing his direction, would naturally reach an intersecting point first, would naturally have the right of way, and the one who, not changing his rate of speed or his direction, would naturally reach such point last must give way to the rights of the one who would reach there first.' To this an exception was taken.

1. The testimony of the motorman made out a complete case of negligence on his part, that is to say, on the part of the defendant.

When the motorman of a car sees a team ahead which is being driven in a straight line 'coming in towards' the tracks so that if both keep on a collision will ensue, it is the duty of the motorman to stop his car if he sees that the driver of the team is going on, even if the driver ought not to go on. In place of that the motorman in the case at bar by his own testimony deliberately ran the plaintiff down. We are of opinion that no exception lies to the ruling by which the presiding judge left this question to the jury. Glazebrook v. West End Street Railway, 160 Mass 239, 35 N.E. 553; White v. Worcester Street Railway, 167 Mass. 43, 44 N.E. 1052; Vincent v. Norton & Taunton...