Dube v. Keogh Storage Co.

• Decision Date: 24 November 1920
• Citation: 236 Mass. 488,128 N.E. 782
• Parties: DUBE v. KEOGH STORAGE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 488

128 N.E. 782

DUBE

v.KEOGH STORAGE CO.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 24, 1920.

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

Action by Adelard L. Dube against the Keogh Storage Company. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

The charge of the court, so far as material, to the matters discussed in the opinion, follows:

Now, as I understand the testimony, although it is wholly for you, this man was there in the exercise of his function to keep a part of that highway fit for travel, safe for travel. I understand he was doing something with reference to a switch on the street railway tracks. It is important, and, indeed more so as we travel in street railways, and it is vital, it is essential, that the switches be kept safe, so that they will operate properly and so that street railway cars carrying large numbers of travelers shall travel over them safely. He was there fixing the switch; he was where he had a right to be. He was doing what was necessary for the safety of the public that he should do. So far, no dispute.

Now, how was he doing the work which he was called upon to do then and there? How was he doing it? Well, with reference to safety, I suppose, we ought to consider for a minute at any rate the time in the morning, and whether that was a street that was given up pretty largely to traffic, or congested traffic, at that time of day.

Now, there are certain streets in a city that are crowded with traffic, with all kinds of teams, travelers, and so forth, at certain times of the day, and at certain other times of the day they are practically clear. Now, on congested streets, as well as streets little traveled-perhaps more because they are congested-it is necessary to keep switches in excellent safe condition, so that, even on the most congested thoroughfares, it is necessary to see that the switches are kept in good condition. But the question is raised here whether this was a congested thoroughfare then and there.

It is not enough to say, of course, that sometimes the place is congested, crowded with traffic. How was it at the time when the man went there to do his work? Because that enters into the question of whether he was doing it as a reasonably careful man would do it. It seems it was quarter before 8 in the morning, and there was distinct information given you from the witnesses as to whether or not the street was crowded at that time. It is for you to say, but, as I recall in a general way, they said there was not another truck or wagon or anybody else on the street for quite a long distance there. Then, it was not congested at that time if you find that was the fact, and that is wholly for you.

What was the condition of the street? Was that a proper time for the man to go down there and do his work? You may say it was. Of course, you may say it was not; that it was carelessness on the part of the man. But, if you say it was, then there is another step-he was doing as the ordinarily careful man would do.

Now, if he was where he had a right to be, as he was, if he was there at a proper time, as you may say he was, what was he doing and how was he doing it? It seems he had a little pad-perhaps we do not get down on our knees as much as we should-but he had something to soften his knees, and he was kneeling on the little pad on the hard pavement. He did open up some kind of a thing in the track. I understand there was some kind of a hold there, into which he was reaching with his wrench to tighten or loosen or repair something down in the hole, and it is for you to say that would be necessary for him to do under those circumstances. He could not stand up erect to do it; he could not conveniently do it standing on his head; he has in some way got to get down there, and it is for you to say what would be a reasonable, careful, and suitable way in which a reasonably careful man should do that work.

Now, you heard how he was kneeling down there, with his wrench down in the hole working away there. Did he do anything to look out for himself? There was some testimony about that; it is for you to say what it was, but, in a general way, before he went down he looked up around the street and there was nobody on the street, and when he got down there he had a flag with a little staff 3 to 4 feet high-a flag in his hand, a dirty yellow flag that had been used for something or other, and it had become dirty, at any rate. You remember the description. There was testimony, and you remember who testified to that, not only himself, but the others who testified to it, that he was not waving the flag, but that the flag was elevated and floating there, or was hanging there, at any rate, while he was doing the work.

Now, you may say that the work was a vital thing and had to be done. If it had to be done, for our purposes it should be done as a reasonably careful man would do it. Now, what would a reasonably careful man do doing this necessary job there? Could he be looking around the street, or should he give his attention to this important matter which he was doing? That is wholly for you. The fact that the man became engrossed in his work so that he was giving his whole attention to his work does not mean he was negligent, if you say that a reasonably careful man in doing that kind of important work should give enough attention to that work to see that it was properly done. Now, what do you say? With the flag in his hand, or staff, floating there 3 or 4 feet high, and bending over and doing this work with his wrench, down fixing the nuts or whatever needed to be fixed in the switch.

Why do we dwell on that? For this reason: In order that you may get the whole picture and ask yourselves this question, did that man, so occupied in that important task, so occupied, did he act as an ordinarily careful man would act in looking out for his own safety. Did he do anything? There is testimony he looked up and down the street and saw the street was clear, and that he did maintain the flag. Now, what else would you have done, what else would an ordinarily careful man have done with this work on hand to carry out? If you say an ordinarily careful man would have done something different from what he did, then his failure in that respect would be negligence on his part. Negligence means failure to do something that an ordinary, reasonably careful man would have done under the circumstances.

Now, there he was. Here was the street: here were the surroundings. As I gathered from the testimony, he was somewhere near the corner of Fourth and Pleasant, and you know the possibilities of traffic on all streets. He had a right to presume that people would use the street with reasonable regard to the safety of other folks on the street, reasonable regard to his own safety; that a man coming down with an automobile, or milk wagon as that has been mentioned, or wheelbarrow, or anything else would use the streets in a proper way, that is, with reasonable regard to the rights of other persons who were rightly on the street, and he was rightly on the street. He had a right to presume that.

He had a right to presume that people coming past corners, especially a blind corner if this is; as I gathered from some of the testimony this is a blind corner, but that is for you to say. You saw it, and heard the testimony about it. And there are rules with reference to automobiles driving past blind corners, that they shall signal, and go slow, and so forth. You know what they are; I have told you a number of times here, and doubtless you know anyway.

He had a right to presume that travelers like this defendant coming down that street would give the ordinary signals and do the ordinary things that reasonably careful men would do in obedience to the law and in obedience to the dictates of humanity and common sense and prudence.

Now, doing what he was doing, with the right to presume what he had a right to presume with reference to other people acting properly, with the flag elevated, and, and with all the conditions as they existed then, do you think that he was careless? That is for you. If you say he was careless, and that it was his carelessness that caused the accident, or that his carelessness contributed to the accident, then he cannot recover. The defendant would be entitled to your verdict. But, if you say that he was doing all that any man would be expected to do under those circumstances at that time and place, doing that kind of a job, then, so far as he was concerned, he was all right and can recover on this accident, if the other facts necessary are shown. And the other fact, particularly, is the conduct; whether the conduct of the defendant was careless.

Well, now, what was the conduct of the defendant? You are to take it from the evidence. Remember that you are to say what the evidence is, and you are to draw the inference from the evidence.

Here was a man who turned from Main street, as I gather, onto Pleasant street; there was a long, straight stretch, and here was this man, according to...