Donovan v. Lynn & B. R. Co.

• Decision Date: 18 May 1904
• Parties: DONOVAN v. LYNN & B. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 533

70 N.E. 1029

DONOVAN v. LYNN & B. R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1904

COUNSEL

Michael

F. Phelan and Edward E. Reardon, for plaintiff.

Henry F. Hurlbut and Damon E. Hall, for defendant.

OPINION

MORTON J.

This is an action of tort to recover for personal injuries caused by the plaintiff's being struck by one of the defendant's cars as she was crossing Chelsea street, in Charlestown, on the evening of July 8, 1899. At the close of the plaintiff's evidence, the court ruled that she could not recover, and directed a verdict for the defendant. The case is here on the plaintiff's exceptions to this ruling and direction.

We think that the ruling was right, and that the plaintiff was not in the exercise of due care. The accident happened at about 11 o'clock in the evening, and the plaintiff was struck by the car just as she was in the act of stepping onto the track. The night was misty and rainy. The plaintiff lived near by, and was familiar with the street and the running of the cars. She was on her way to a store to purchase some meat. She testified that as she came to the crossing she looked around, and saw that a car was just about as far as Gray street; that the 'just gave a look around, and saw another car coming from City Square, quite a distance away also going towards Chelsea'; that she 'walked along the crossing, and * * * was struck by a car coming along from Chelsea and going towards City Square'; that she 'did not see any car coming from Chelsea; did not hear any gong nor any car.' But the uncontradicted testimony of her own witnesses showed that the car which struck her was well lighted, and, notwithstanding that the night was misty and raining, could be seen from 150 to 300 feet away. It also showed that the car was only 10 feet away when she stepped onto the track, and that the noise made by the motorman in putting on the brakes was sufficient to attract attention. The distance from the curbing to the track on which she was in the act of stepping when struck was 17 1/2 feet, and her own statement on cross-examination was that she 'stepped down onto the cross-walk and walked right across on the crossing, and was struck'; that she 'walked kind of fast,' and all she 'noticed was the car which the last time' she 'saw it was at Gray street, and the other car some distance away from me, coming out from City Square'; and that she paid no...