Donoghue v. Holyoke St. Ry. Co.

• Decision Date: 13 October 1923
• Citation: 246 Mass. 485,141 N.E. 278
• Parties: DONOGHUE v. HOLYOKE STREET RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

246 Mass. 485

141 N.E. 278

DONOGHUE

v.HOLYOKE STREET RY. CO.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 13, 1923.

Exceptions from Superior Court, Hampden County; Christopher T. Callahan, Judge.

Action of tort by Patrick Donoghue against the Holyoke Street Railway Company for damages for personal injuries. Verdict for plaintiff for $3,750, and defendant brings exceptions. Exceptions overruled.

Plaintiff, a member of the city fire department, was injured in collision between hook and ladder truck, on which he was riding, and defendant's street car. Defendant excepted to the exclusion of evidence that plaintiff was paid by the city while he was sick, to the exclusion of an ordinance under which disabled firemen might be retired on pension, to the denial of a directed verdict, to the denial of a motion to discharge jurors who were residents and taxpayers of the city of Holyoke, to the denial of requested rulings, and to portions of the charge as given.

J. R. Callahan, of Northampton, and E. A. Lynch and H. J. Lacey, both of Holyoke, for plaintiff.

W. H. Brooks and J. P. Kirby, both of Springfield, D. H. Keedy, of Amherst, and C. Brooks, of Springfield, for defendant.

CARROLL, J.

The plaintiff, a permanent member of the Holyoke fire department, while returning from a fire May 4, 1918, was injured by reason of a collision between the fire truck on which he was riding and a trolley car of the defendant. When the collision occurred the plaintiff, who was a ladder man, was standing on the running board. He testified that, as the truck turned into Main street from Hamilton street, it was moving at the rate of 4 miles an hour; that he heard a crash and started to climb to the top of the ladder; that the running board began to crack and he was pinned between the car and the truck; that immediately before the accident he was looking in the direction in which the truck was going, but did not see the trolley car until just as the collision occurred, and when the car was about one foot distant; that if he had seen anything he would have tried to warn the driver of the fire truck. The lieutenant in charge of the fire truck testified that if the plaintiff saw a trolley car, it was no part of his duty to give warning of its approach; but, if the trolley car was dangerously near, ‘it would be a part of his duty to give such warning.’ The verdict was for the plaintiff, and the defendant excepted.

[1] The motion for a directed verdict was denied properly; the question of the defendant's negligence was for the jury. They could have found that the trolley car was running at the rate of from 30 to 35 miles an hour, that no gong was sounded; and that the collision occurred at intersecting streets. In these circumstances the general rule is applicable that the issue of the defendant's negligence is a question of fact for the jury. Daris v. Middlesex & Boston Street Railway, 241 Mass. 580, 582, 136 N. E. 68, and cases cited.

[2] The jury could have found that the plaintiff was in the exercise of due care. He was standing on the running board of the truck, where it was proper for him to stand in the discharge of his duty. He did not see the trolley car, he did not know that a collision was imminent until he heard the noise of the crash, and then he tried to avoid the danger.

[3] The plaintiff and the other occupants of the truck were not engaged in a joint enterprise, so that each was responsible for the conduct of all the participants. The elements necessary to establish a joint undertaking are lacking. There was uncontradicted evidence that the lieutenant was ‘in charge of this piece of apparatus, and the men upon it.’ The principle that, if two or more persons participate in a common or joint undertaking and one is injured by the negligence of a third person, the contributing negligence of a joint participant in the enterprise is to be imputed to the injured person, has no application in the case at bar. As was said in Barry v. Harding, 244 Mass. 285, 292, 293, 139 N. E. 298:

‘The evidence does not warrant a finding that the plaintiff had an equal right with the driver in respect of the control of the automobile. * * * It does not warrant a finding that he had power to control the means, or an equal right to direct the conduct of the undertaking.’ Skerry v. Rich, 228 Mass. 462, 117 N. E. 824;McKernan v. Detroit Citizens' Railway, 138 Mich. 519, 101 N. W. 812,68 L. R. A. 347;Geary v. Metropolitan Street Railway, 84 App. Div. 514,82 N. Y. Supp. 1016, affirmed 177 N. Y. 535, 69 N. E. 1123.

See Loftus v. Pelletier, 223 Mass. 63, 111 N. E. 712.

[4][5] The plaintiff did not trust his safety entirely to the care of the driver, the lieutenant, or the tiller man. The defendant's requests, in effect, that if the plaintiff relied solely on the care and vigilance of the lieutenant, the driver and the tiller man, or any of them, he could not recover if their negligence contributed to the accident, were properly refused. There was no evidence that the plaintiff relied entirely on the care of these men. He was looking out for his own safety. There was evidence that if he saw the ‘trolley car dangerously near it would be part of his duty to give warning’ to the driver; and the plaintiff admitted that if he had known of he approach of the trolley car he would have tried to warn the driver. But there was no evidence that he saw the car until the time of the collision, and he testified that he did not see it until just before the crash. Even if his evidence were not believed by the jury, there was nothing to support the defendant's assumption that the plaintiff placed himself entirely in the care of the men in charge of the apparatus. He might safely trust the driver and tiller man to manage the truck, and the lieutenant to direct its operations, while he was on the lookout for his own safety. See Griffin v. Hustis, 234 Mass. 95, 125 N. E. 387;Fahy v. Director General of Railroads, 235 Mass. 510, 126 N. E. 784.

The defendant offered to prove that the plaintiff was a member of the fire department of the city of Holyoke, appointed under the civil service laws, and paid a weekly salary from the time he was injured until he returned to work, and offered section 10, chapter 10, of the Revised Ordinances of the city of Holyoke, showing that a fireman, receiving permanent injuries while in the discharge of his duty, may, on the recommendation of the fire commissioners and the approval of the board of aldermen, be retired on a pension equal to one-half the maximum salary of a permanent fireman at the time of retirement. This evidence was excluded. The jury were instructed that whether the city of Holyoke did or did not pay the plaintiff-

‘for that eight months during which he was incapacitated is no test for you. * * * The defendant cannot avail itself of the act of the city of Holyoke * * * as an excuse for relief from the consequence of its own wrongdoing, if it is guilty of any wrongdoing.’

They were further instructed they were to determine to what extent the plaintiff was incapacitated by reason of the injury, and how far his earning capacity was impaired; but they were not to take into account that the city did or did not pay him while...