Doe v. Boston & W. St. Ry. Co.
| Decision Date | 02 April 1907 |
| Citation | 195 Mass. 168,80 N.E. 814 |
| Parties | DOE v. BOSTON & W. ST. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Dewey & Allen, for plaintiff.
Peabody & Arnold, for defendant.
Of the various exceptions taken by the defendant to refusals to rule as requested, and to the instructions given, only two have been argued, and the others must be considered as waived. Its first contention is, that the plaintiff's intestate was not in the exercise of due care. The decedent was a motorman in the defendant's employment, and at the time of the accident was in charge of a west-bound car, which came into collision with a car going east, by which he suffered injuries ultimately causing his death. It appeared by his declarations put in evidence during the testimony of his widow, that when he left White's Corner the 'starter' in charge 'had given him a clear right of way to the Washington street turnout,' and that when injured he has 'running on his regular time.' Acting under this order he went forward, and just before the collision, the car passed around a curve at a speed estimated by himself, and other witnesses, as from 10 to 40 miles an hour. His declarations contained the further statement, that he did not see the east-bound car until it was in such proximity that a collision was inevitable. But while running rapidly, and unable to ascertain if the track was clear until he passed the radius of the curve, under the defendant's system of operating this portion of its railway, it could have been found, that the decedent's car had the right of way, and that he had no reason to apprehend that at the same time an east-bound car would be passing over the track at this place. When employed at his usual work, and acting under the assurance, or order of the person charged by the defendant with the duty of seeing that the track was clear between the points, the deceased had a right to presume that he could safely proceed. If the track was properly supposed to be clear, the jury could find that the rate of speed was not excessive, and that his conduct while operating the car in the ordinary was, as he appears to have been doing, was not careless. It plainly could not have been ruled as matter of law that he was negligent, and this question was an issue of fact for their determination. Nagle v. Boston & Northern St., Ry. Co., 188 Mass. 38, 73 N.E. 1019. By Rev. Laws c. 106, § 71, cl. 2, under which the action is brought, the defendant is responsible for the negligence of those, to whom it had given authority to exercise superintendence in the operation of its railway. Upon the eastbound car reaching the turnout at the end of the double track, and when it was ready to proceed to White's Corner, then under the defendant's regulations before it passed to the single track, the conductor called 'the dispatcher,' one McFee, by telephone. It was not in dispute that this person acted as a dispatcher, with an office some 7 1/2 miles distant from the turnout, with authority to direct, from that end, the running of cars on the single track. While the versions of the conversation which followed as given by him and the conductor substantially differed, the jury were free to believe the statements of the conductor. If they did, it would follow that after giving his name, and that of the motorman, as being at the turnout going east, the conductor received the order, 'All right to White's Corner,' and after repeating the order to the dispatcher, who made no further reply, the conductor also repeated it to the motorman, and their car then started from the turnout on to the single track, and proceeded on its way, when after running a short distance the collision took place. If the order was given in this form, there was evidence for their consideration of negligence in superintendence on the part of the dispatcher when he directed the...
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Feneff v. Boston & M.R.r.
...care he ought to have known there was every reason to anticipate that the collision which followed might occur. Doe v. Boston & Worcester St. Ry. Co., 194 Mass. 168, 80 N.E. 814. avoidance of this liability the defendant urges, that two or more wrongdoers cannot be held jointly, unless eith......
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