Daris v. Middlesex & B. St. Ry. Co.

• Decision Date: 26 June 1922
• Citation: 136 N.E. 68,241 Mass. 580
• Parties: DARIS v. MIDDLESEX & B. ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 580

136 N.E. 68

DARIS

v.MIDDLESEX & B. ST. RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

June 26, 1922.

Exceptions from Superior Court, Middlesex County; Robert F. Raymond, Judge.

Action of tort by Alexis H. Daris against Middlesex & Boston Street Railway Company for personal injuries and damages to plaintiff's automobile caused in a collision with defendant's car at a street intersection. Directed verdict for defendant, and plaintiff brings exceptions. Exceptions sustained.

Plaintiff died subsequent to the accident, but his death was not caused by the injury, and the action was prosecuted by his administrator. The exception was to the direction of the verdict.

1. Street railroads k112(3)-Contributory negligence affirmative defense under statute.

Under Gen. Laws, c. 231, s 85, contributory negligence of one injured in a collision between his automobile and a street car was an affirmative defense, the burden of proving which rested on defendant.

2. Street railroads k117(29)-Automobile driver's contributory negligence in failing to see held for jury.

Whether, in the exercise of due care, an automobile driver, colliding with a street car at a street intersection, where the view was somewhat obstructed, ought to have seen the approaching car, notwithstanding the obstructions, was a question for the jury.

3. Street railroads k98(2)-Violation of statute by automobile driver, contributing to injury, defense.

If the driving of an automobile, as to speed and control, contrary to St. 1909, c. 534, ss 16, 31, now Gen. Laws, c. 90, ss 14, 17, contributed to the driver's injury in a collision with a street car, there could be no recovery.

4. Street railroads k117(24)-Automobile driver's contributory negligence in violating statute question of fact.

Whether the driving of an automobile, contrary to St. 1909, c. 534, ss 16, 31, now Gen. Laws, c. 90, ss 14, 17, as to speed and control contributed to an injury in a collision with a street car, was a question of fact.

5. Street railroads k117(10)-Negligence of motorman in approaching street junction held question of fact.

Whether a motorman of a trolley car, approaching the junction of two streets, where the view was somewhat obstructed, at full speed, and without sounding a whistle or bell or giving other warning, was negligent, was a question of fact.J. J. Shaughnessy, of Marlboro, for plaintiff.

Pitt F. Drew and Charles S. Walkup, Jr., both of Boston, for defendant.

RUGG, C. J.

This is an action of tort to recover compensation for personal injuries sustained at about 9 o'clock in the forenoon of December 5, 1917, by the plaintiff's intestate through collision between an automobile which he was driving, with a trolley car of the defendant. The collision occurred at the junction of two public ways, Boden lane and West Central street. The automobile was being driven on Boden lane, on a descending grade toward West Central street. On the side of that street the defendant maintained two tracks. A trolley car was coming on the track nearer Boden lane. Without narrating the evidence in detail, it is enough to say that there was some evidence tending to show that the view of one driving down the lane was somewhat obscured in the direction from which the trolley car was approaching, by a pine tree, a billboard, a pile of sleepers of considerable length, and at one point by an undergrowth of bushes and small pines.

[1][2] The plaintiff's intestate did not testify, having died before the trial. His contributory negligence was an affirmative defense, the burden of proving which rested on the defendant. G. L. c. 231, § 85; Duggan v. Bay State Street Railway, 230 Mass. 370, 119 N. E. 757, L. R. A. 1918E, 680;Mercier v. Union Street Railway, 230 Mass. 397, 119 N. E. 764. Although this was a close question of fact, it still was a question of fact. It could not have been ruled as matter of law that this defense had been made out. Whether in the exercise of due care he ought to have seen the approaching car notwithstanding the obstructions to vision...